FEDERAL COURT OF AUSTRALIA

Kimberly-Clark Australia Pty Ltd v Minister for Home Affairs [2011] FCA 225

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicants pay the respondents’ costs, as taxed or agreed.

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

REASONS FOR JUDGMENT

The Applicants’ Challenge

1    On 31 December 2008 the first respondent (‘the Minister’) published a dumping duty notice under s 269TG(2) of the Customs Act 1901 (Cth) (‘the Act’) in respect of certain toilet paper exported to Australia from China and Indonesia. On 6 January 2010 the third respondent (‘the Attorney-General’) made a decision to revoke that dumping duty notice (‘revocation decision’). By their amended application filed on 29 June 2010, the applicants (‘KCA & SCA’) seek to review the revocation decision and two anterior decisions that led to it.

2    The first anterior decision sought to be reviewed is the decision of the Attorney-General made on 23 June 2009 to direct the second respondent (‘CEO of Customs’ or ‘Customs’) to reinvestigate all findings in a report dated 16 December 2008 entitled Trade Measures Report No 138 (‘TMR 138’) and to report the results of the reinvestigation to him by 31 December 2009 (‘reinvestigation decision’).

3    The second anterior decision sought to be reviewed is the report of Customs to the Attorney-General dated December 2009 and entitled Report to the Minister REP 158 (‘REP 158’) (‘recommendation decision’).

4    The grounds of KCA & SCA’s application are:

(1)    The decisions were not authorised by the enactment pursuant to which they were purported to be made;

(2)    the recommendation decision and the revocation decision involved an error of law, namely, that they were based on a misconstruction of the term ‘material injury’ in the Act; and

(3)    the recommendation decision and the revocation decision were otherwise contrary to law; they were irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

5    KCA & SCA have sought relief under s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the AD(JR) Act’) in respect of these decisions. In so far as KCA & SCA seek relief under the AD(JR) Act, they require an extension of time under s 11(1)(c) of that Act, which they also seek.

Factual Background

6    KCA & SCA are manufacturers of toilet paper in Australia. On 23 February 2008 they lodged an application under s 269TB(1) of the Act requesting that the Minister publish a dumping and countervailing duty notice in respect of certain toilet paper exported to Australia from China and a dumping duty notice in respect of certain toilet paper exported to Australia from Indonesia. The application for the countervailing duty notice was withdrawn on 24 October 2008.

7    On 16 December 2008, pursuant to s 269TEA(1) of the Act, Customs gave the Minister TMR 138 entitled Toilet Paper Exported from the People’s Republic of China and the Republic of Indonesia. In TMR 138 Customs recommended that the Minister declare by public notice pursuant to s 269TG(2) of the Act that s 8 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) applied to all like goods that are exported to Australia by all exporters from China (except Vinda Paper (Jiangmen) Co Ltd) and Indonesia after the date of publication of the notice. The Minister accepted that recommendation and decided to publish a dumping duty notice on 22 December 2008 (‘Minister’s dumping duty decision’). That notice was published on 31 December 2008.

8    In section 3.2 of TMR 138, headed ‘Findings’, Customs sets out the findings on the basis of which it recommended that the Minister publish a dumping duty notice in relation to the goods under consideration (‘GUC’):

3.2    Findings

Customs found that:

    There is an Australian industry producing like goods to the goods;

    exports of toilet paper from China to Australia were dumped by a margin of 2% to 25%;

    exports of toilet paper from Indonesia to Australia were dumped by a margin of 33% to 45%;

    the industry producing like goods has suffered injury in the form of:

•    price undercutting;

•    price depression;

•    price suppression;

•    reduced profits and profitability; and

•    reduced return on investment

    there is a causal link between the dumped imports and injury to the Australian industry and the injury caused by dumping is material; and

    exports in the future from China and Indonesia are likely to be dumped and material injury to the Australian industry is likely to continue.

9    In the 30 days that followed publication of the Minister’s dumping duty notice, the fourth respondent (‘PT Pindo’) and the fifth respondent (‘GHY’) and six other companies, including Woolworths Limited (‘Woolworths’), applied to the Trade Measures Review Officer (‘TMRO’) under s 269ZZC of the Act, seeking review of the Minister’s dumping duty decision (together ‘review applications’).

10    On 20 March 2009 the TMRO published a notice under s 269ZZI of the Act setting out the decision sought to be reviewed, namely the Minister’s dumping duty decision; describing the goods to which the review applications relate; detailing the review applications received (including the particular finding or findings the reinvestigation of which is sought by each applicant); inviting interested parties to lodge submissions concerning the review applications within the prescribed time; and indicating the address at which, or the manner in which such submissions could be lodged.

11    On 14 May 2009 the TMRO made a report to the Attorney-General in respect of the review applications (‘TMRO report’). The Attorney-General was, and continues to be, acting for and on behalf of the Minister in respect of all matters relating to TMR 138. The TMRO report recommended that all the findings of the investigation (that led to TMR 138) be reinvestigated. The Attorney-General accepted this recommendation and, on 23 June 2009, directed the CEO of Customs to reinvestigate all findings in TMR 138 and to report the results to him by 31 December 2009. Notice of the Attorney-General’s acceptance of the TMRO’s recommendation (including particulars of the requirements made of the CEO of Customs) was published in the Commonwealth Gazette on 1 July 2009.

12    Customs reinvestigated all the findings in TMR 138 even though not all of the particulars of the individual findings to be reinvestigated were set out in the TMRO report (REP 158, p 13) and even though the review applications did not refer to or dispute a number of those findings. KCA & SCA identified what it said were examples of findings not referred to or disputed in review applications which were nevertheless reinvestigated by Customs at REP 158, pp 26.8; 28.9; 33.2; 47.2; 53.9; 58.8; 60.6; 66.8; 68.10; 73.5; 76.1. In December 2009, Customs gave the Attorney-General REP 158.

13    In REP 158 Customs recommended that the Attorney-General revoke the former Minister’s decision to publish a dumping duty notice imposing dumping duties on toilet paper from China (except Vinda Paper (Jiangmen) Co Ltd) and Indonesia; revoke the dumping duty notice published on 31 December 2008; and substitute a new decision not to publish a dumping notice, taking effect from 31 December 2008. The Attorney-General accepted these recommendations and on 6 January 2010 made the revocation decision.

Ground 1: The decisions were not authorised by the enactment pursuant to which they were purported to be made

KCA & SCA’s Argument

14    In summary, KCA & SCA’s argument may be shortly stated: What occurred as a result of the TMRO report was a wholesale review of TMR 138. The Act does not allow for such a review. While it provides for a reinvestigation of a finding or findings that formed the basis of the reinvestigation decision (TMR 138), the finding or any of the findings reinvestigated must be confined to that or those specified in the application(s) for review.

15    According to KCA & SCA, the pertinent provisions of the Act leading to this conclusion, may be summarised as follows:

16    The decisions reviewable under Div 9 of Pt XVB include a decision by the Minister to publish a dumping duty notice under s 269TG: s 269ZZA(1).

17    An application for review of a decision must be made within a very short time, namely, 30 days after public notice of the decision: s 269ZZD.

18    That application must be in writing and must particularise the grounds which warrant the reinvestigation of a finding or findings that formed the basis of the reviewable decision and must specify those findings: s 269ZZE.

19    The word ‘finding’ in this subdivision is both expanded and confined by s 269ZX. It means: ‘a finding on a material question of fact or on a conclusion based on that fact’.

20    Section 269ZZF sets the onus. Pursuant to that section, the applicant must satisfy the TMRO that there are reasonable grounds to warrant the reinvestigation of the findings specified in the application.

21    If an application contains insufficient particulars of the finding or findings to which the application relates, the TMRO must reject the application: s 269ZZG.

22    Notice of the application must be published and must include the particular finding or findings the reinvestigation of which is sought: s 269ZZI.

23    Interested parties may make submissions within 30 days after publication of the notice: s 269ZZJ. Critically, this is the only opportunity available to make submissions on the application for review. That fact, together with the TMRO’s obligation to reject an insufficiently particularised application and to publish particulars of the findings challenged, highlight the importance placed on the specificity required in respect of those findings.

24    If the TMRO does not reject an application he or she must report to the Minister making one of two possible recommendations: first, that the Minister affirm the reviewable decision; and secondly, that he direct the CEO of Customs to reinvestigate a finding or findings that formed the basis of the reviewable decision being the finding or any of the findings specified in the application: s 269ZZK(l). The italicised phrase is an important qualification to the finding or findings that the TMRO can recommend be reinvestigated.

25    If the TMRO recommends reinvestigation and the Minister accepts the recommendation, the Minister must require Customs to reinvestigate the finding or findings: s 269ZZL. The ‘recommendation’ and the ‘finding or findings’ referred to in s 269ZZL(2) must include the qualification found in s 269ZZK(l) (namely, ‘being the finding or any of the findings specified in the application’) because the TMRO is only able to make one of two recommendations.

26    Customs must then reinvestigate the finding or findings (which, again, must have the same qualifications as those in s 269ZZK(l)) and give a report concerning that finding or those findings: s 269ZZL(3).

27    After receiving a report by Customs in respect of a reinvestigation under s 269ZZL(3), the Minister must either affirm the reviewable decision or revoke it and substitute a new decision: s 269ZZM.

28    The combination in these provisions of the use of mandatory language, tight timeframes, and the repeated qualification of the words ‘finding or findings’, together with the fact that the provisions are a code by which relevant decisions may be reviewed, reveals that there is intended to be limited scope for review of relevant decisions. This clear purpose is consistent with a conclusion that the provisions must be strictly complied with and that the failure to comply with any of the provisions leads to the invalidity of the action purportedly taken under the provisions: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] per McHugh, Gummow, Kirby and Hayne JJ.

29    Similarly, the scope and purpose of these provisions reveals that the availability of each step of the review is conditioned upon a previous step taken in compliance with the provisions. Thus, the TMRO can only make a recommendation to the Minister in respect of a finding if there is an application that specifies that finding.

30    In this case, the TMRO’s report to the Attorney-General recommended that ‘all of the findings of the investigation [in TMR 138] be reinvestigated’. However, the finding or findings to which the TMRO was entitled to address any recommendation were limited to those ‘specified in the application’ for review: s 269ZZK(l)(b). On no view of the review applications can they be said to have specified all of the findings made by Customs in TMR 138. That much was obvious to Customs, as it made clear in REP 158 – see the examples referred to in [12] above. For that reason, the TMRO’s report was not a recommendation within the meaning of s 269ZZK. As a consequence, the Attorney-General did not receive a recommendation by the TMRO.

31    The receipt of a recommendation by the TMRO is a hinge upon which the statutory regime for reinvestigation turns: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [119]. Absent that receipt, there is no power in the Minister to require Customs to reinvestigate. Similarly, Customs’ power to reinvestigate only arises upon it being required to do so by the Minister. Thus, any reinvestigation by Customs that does not arise from a lawful requirement by the Minister is not one that is authorised by the Act. It is not ‘a reinvestigation under subsection s 269ZZL(3)’.

32    Finally, the Minister’s power to revoke a reviewable decision and to substitute a new decision is contingent upon his receipt of a report by Customs in respect of ‘a reinvestigation under subsection s 269ZZL(3)’: s 269ZZM(1). KCA & SCA submitted that where, as here, there is no such reinvestigation, there is no power to revoke the reviewable decision. That means that the revocation decision was not authorised by the Act and was no decision at all: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51] per Gaudron and Gummow JJ, [63] per McHugh J, [152] per Hayne J.

The Commonwealth Respondents’ Argument

33    The Commonwealth respondents accepted that the powers of the TMRO under s 269ZZK(1) were limited to recommending either that the Minister affirm the reviewable decision (which, here, was the decision to publish a dumping duty notice), or that the CEO of Customs be directed to reinvestigate some or all of the findings specified in the applications for review. If a recommendation of the TMRO went beyond dealing with such ‘findings’, the recommendation to that extent would not fall within s 269ZZK(1).

34    Reference was made to the definition of the word ‘finding’ in s 269ZX (see [19] above). According to the Commonwealth respondents, it followed that each of the conclusions which Customs had set out and described as ‘findings’ in section 3.2 of TMR 138 (see [8] above) was, for the purposes of ss 269ZZE(2)(c) and 269ZZK(1)(b), a ‘finding’.

35    The Commonwealth respondents argued that it was therefore open to an interested party to specify one or more of those conclusions in its application to the TMRO; and, with that having been done, it was open to the TMRO to recommend reinvestigation of one or more of the conclusions thus specified. According to the Commonwealth respondents, any such recommendation would encompass the findings on particular questions of fact, and the reasoning based on such findings, that led to the conclusion in question.

36    They further argued that this reading accords with the evident purpose of limiting the TMRO’s power by reference to ‘findings’ that are ‘specified’. That purpose is to allow interested parties to know which aspects of the reasoning leading to the reviewable decision are under review; to direct their submissions (under s 269ZZJ) accordingly; and to have confidence that the review will not lead to reinvestigation of an aspect of the reasoning which they have not had an opportunity to address. (This is in circumstances where the reinvestigation itself will proceed on the papers and without a further opportunity for submissions.) For this purpose, it is not necessary that every specific finding of fact which is in issue be specified. According to the Commonwealth respondents, if a conclusion (for example, that dumping has caused material injury) is specified, that is sufficient to found a review and recommendation on that conclusion and the specific findings and reasoning that led to it.

37    According to the Commonwealth respondents, each of the ‘findings; found by Customs and specified in section 3.2 of TMR 138 was specified by at least one of the applications to the TMRO:

(1)    Australian industry producing like goods: specified by Woolworths Limited.

(2)    Dumping margins of exports from China: specified by GHY, A&J Australia Pty Ltd, John S Hayes and Associates Pty Ltd, W&D Industry Co Ltd; challenged (but not specified) by Gallego Pty Ltd.

(3)    Dumping margins of exports from Indonesia: specified by PT Pindo.

(4)    Australian industry suffering injury: specified by PT Pindo, GHY, Woolworths.

(5)    Material injury caused by dumping: specified by PT Pindo (Indonesia), GHY (China), Woolworths.

(6)    Continuation of dumping and consequent material injury: specified by PT Pindo (Indonesia) and GHY (China).

So much does not seem to be in dispute.

38    According to the Commonwealth respondents, the TMRO was therefore entitled to recommend that each of those findings – and hence, all of the findings on which the reviewable decision was based – be reinvestigated. In making his recommendation, the TMRO cited s 269ZZK(1)(b). This indicates that, rather than ignoring the limit placed on his power by that provision, he was proceeding on the understanding that all aspects of the reasoning in the earlier investigation had been put in issue by the applications he had received.

39    According to the Commonwealth respondents, the only deficiency in the TMRO’s report was an omission to ‘set out the finding or findings’ which in his view ought to be reinvestigated, in accordance with s 269ZZK(2)(b). This, however, is not an omission which goes to the existence of a ‘recommendation’ upon which the Minister may Act under s 269ZZL(2).

40    According to the Commonwealth respondents, subss 269ZZK(2)(b) and (c) are machinery provisions which relate to the manner of making a ‘report under subsection (1)’. That report is to ‘recommend’ either that the reviewable decision be affirmed or that particular findings be reinvestigated; and the power in s 269ZZL(2) is enlivened when the Minister ‘accepts a recommendation by the [TMRO] to reinvestigate a finding or findings’. The making of a ‘recommendation’ in respect of a finding necessarily involves identifying that finding in some way; but so long as that is done (and the relevant finding is one that was ‘specified’ in an application for review), there exists a recommendation capable of being accepted for the purposes of s 269ZZL(2). The existence of a recommendation does not depend on written reasons having been given for it, or on the particular findings in question having been ‘set out’ (so long as the relevant finding is sufficiently identified). Failure to comply with subss 269ZZK(2)(b) or (c) might mean that the TMRO could be ordered to comply with the provision; but it does not go to the Minister’s power to direct a reinvestigation.

41    For these reasons, the Commonwealth respondents argued that the TMRO did not exceed his power under s 269ZZK(1), or fail to complete his statutory task in any manner that undermined the power to make the decisions under review.

42    In the alternative, the Commonwealth respondents argued that if the TMRO did err by making a recommendation that related to all findings in the earlier investigation, rather than particular findings that were specified in the applications for review, that error did not have any effect on the outcome of subsequent exercises of power and therefore was not material. For that reason, any error did not affect the validity of the two decisions in respect of which relief is sought (the reinvestigation decision and the revocation decision).

43    They observed that the only issues upon which Customs departed from its earlier findings in any material way were as to the nature and extent of injury being suffered by the Australian industry, and the significance of dumping as a cause of that injury. (Customs’ revised position as to the likelihood of future material injury followed from these changes of position.) In all other respects, Customs either regarded the conclusions of the TMRO as not involving matters for reinvestigation or adhered to its earlier findings; so that, even if the reinvestigation of those other matters were in some way unauthorised, no rights or interests were thereby affected.

44    The findings as to the nature and extent of injury being suffered by the Australian industry were clearly specified and the subject of detailed argument in the applications of PT Pindo, GHY and Woolworths. KCA responded to these arguments in its submission to the TMRO. Customs’ findings on causation were also specified and subjected to criticism in the submissions of PT Pindo, GHY and Woolworths, and dealt with by KCA in its submission. According to the Commonwealth respondents, Customs’ new findings on these issues – and the acceptance of a recommendation based on those findings – therefore cannot be attributed in any relevant sense to an ultra vires act of the TMRO.

45    The principle that an error must be material in order to provide a basis for relief is well established in relation to jurisdictional error, e.g., SZIGH v Minister for Immigration and Citizenship [2008] FCA 1885 at [41] – [44], and statutory judicial review for error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353, 384. As to the ground of review invoked by ground 1 (that is, s 5(1)(d) of the AD(JR) Act), it may be argued that the Minister was deprived of any power to act (and hence the decisions under review were deprived of any legal basis) by the absence of a ‘recommendation’ made in accordance with s 269ZZK(1). However, the Commonwealth respondents submitted that the TMRO’s recommendation was a recommendation of that kind, to the extent that it was supported by s 269ZZK(1)(b) – that is, to the extent that it called for the reinvestigation of findings that had been ‘specified’ in the applications for review.

46    It followed, according to the Commonwealth respondents, that the Minister (for whom the Attorney-General acted in this instance) had power under s 269ZZL(2) to direct a reinvestigation of the findings concerning material injury and causation. REP 158, at least to the extent that it dealt with those findings, was a report provided under s 269ZZL(3); and it therefore provided a statutory basis for the revocation decision to be made under s 269ZZM.

47    Finally, the Commonwealth respondents submitted that if, contrary to the foregoing arguments, ground 1 was to be resolved in KCA & SCA’s favour, relief should be refused in the exercise of the Court’s discretion. The argument went as follows.

48    The foundation for ground 1 is the alleged error of the TMRO. That error (and hence the asserted absence of a recommendation under s 269ZZK(1)) was the only basis on which it was alleged that the reconsideration decision was beyond power; and that asserted defect in the reconsideration was the basis upon which KCA & SCA alleged that the revocation decision was beyond power.

49    Accordingly, even though no order was sought setting aside the TMRO’s decision (let alone, for example, requiring the TMRO to reconsider the matter), ground 1 is in substance an application for judicial review of that decision: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at [26]. Indeed, if ground 1 were upheld and relief granted on that basis, the proper resolution of the issues would at least prima facie require that some order be made concerning the TMRO’s decision (since, if that decision were not set aside and replaced by some new recommendation, there would be nothing that could be done under subss 269ZZL(1) or (2) and the process begun by the applications for review would be incapable of completion).

50    The Commonwealth respondents submitted that, viewed as an application for judicial review of the TMRO decision, the application in the present proceeding is late; it is late without any real explanation; and it is prejudicial to the interests of other interested parties.

51    The TMRO decision is dated 14 May 2009. From that date (if KCA & SCA’s submissions on ground 1 be correct), KCA & SCA were entitled to relief under the AD(JR) Act, or in the exercise of this Court’s jurisdiction under s 39B of the Judiciary Act 1903 (Cth) (or that of the High Court under s 75(v) of the Constitution) setting the decision aside. The ordinary limitation period for the commencement of such proceedings under the AD(JR) Act expired 28 days after the decision was furnished to KCA & SCA. No formal limitation period exists for applications for relief under s 39B of the Judiciary Act, but it is well settled that unreasonable delay on the part of an applicant may lead to the refusal of relief.

52    Neither the pleadings nor the evidence filed for KCA & SCA attempts to explain why, rather than seeking to have the TMRO decision set aside when it was made, KCA & SCA rested on their rights until after the making of the revocation decision before commencing the present proceedings in April 2010. The issue is sought to be avoided by directing the prayers for relief at the reinvestigation decision (made on 23 June 2009) and the revocation decision (made on 6 January 2010). However, even in relation to those decisions, KCA & SCA require an extension of time under s 11 (1)(c) of the AD(JR) Act to the extent that relief is sought under that Act. So far as the reinvestigation decision is concerned, the delay in seeking relief (which is not sought to be explained, either in evidence or in submissions) is significant. The delay becomes even more significant when it is understood that the relevant ground of review was available to KCA & SCA from April 2009.

53    The consequences of that delay go beyond inconvenience to the Commonwealth respondents. The fourth and fifth respondents (exporters upon whose products dumping duty was imposed by the dumping duty notice published in December 2008) have a direct financial interest in the outcome of the matter. They sought merits review of the decision to publish the notice by the TMRO, within the relevant time limit, and did not seek judicial review at that time. If the decisions that have followed from the TMRO decision (but not that decision itself) are now set aside, they will be left in a difficult position. Unless some additional order is made directed at the TMRO (who is not presently a party), they will at least prima facie be unable to require that officer to deal again with the substance of their criticisms of the decision to impose measures. They may be forced to seek judicial review of that decision, which was made almost three years ago.

54    Further, if the submissions made on the issue of materiality (see [45] above) are not accepted as going to the availability of relief, the Commonwealth respondents would rely on those submissions as an additional reason why relief should be refused in the exercise of the Court’s discretion.

PT Pindo and GHY’s Argument

55    PT Pindo and GHY made a number of general observations critical of KCA & SCA’s challenge. First, they observed that the three decisions challenged are consequential upon the TMRO report, on the basis that that report is affected by error, but that KCA & SCA do not directly challenge the TMRO report: they seek no relief in relation to it in their amended application, although their arguments depend upon the premise that it is not a recommendation at all within the meaning of s 269ZZK of the Act.

56    Secondly, the amended application challenges Customs’ application of the test for ‘material injury’ in s 269TAE of the Act, on its reinvestigation of the Minister’s original decision to impose a dumping duty notice, but it seeks no order remitting the matter to Customs to be determined according to law.

57    PT Pindo and GHY observed that the grounds on which KCA & SCA sought to collaterally attack the TMRO’s report, and to challenge Customs’ application of the material injury test in REP 158, require that both reports be read with an eye keenly attuned to error. They further observed that not only has that approach long been eschewed in the context of judicial review of administrative decisions, but so far as the TMRO’s report is concerned it involves an entirely arid exercise in circumstances where the error alleged, even if established, is not material to the decision of the Minister.

58    PT Pindo and GHY observed that not only have KCA & SCA brought an application calculated to preclude PT Pindo and GHY from obtaining a result on the applications they submitted to the TMRO, they delayed in bringing it. The TMRO’s report was dated 14 May 2009, and the Attorney-General’s decision to accept its recommendations was published on 1 July 2009. The present proceeding was not commenced until 1 April 2010, after Customs provided REP 158 to the Minister in December 2009, and the Attorney-General adopted Custom’s recommendations and revoked the dumping duty notice on 6 January 2010. Again, the delay is at the expense of persons in the position of PT Pindo and GHY, both of which have exported toilet paper to Australia after the Attorney’s decision, on the basis that they would not be liable to pay dumping duties.

59    Finally, PT Pindo and GHY observed that KCA & SCA have sought relief under s 39B of the Judiciary Act and s 5 of the AD(JR) Act in respect of three decisions that they do challenge. In so far as KCA & SCA seek relief under the AD(JR) Act, they require an extension of time under s 11 (1)(c). Although KCA & SCA have sought that extension in the amended application, they have not filed any evidence in support of that application to explain their delay, nor do their written submissions address the issue.

60    Like the Commonwealth respondents (see [37] above), PT Pindo and GHY submitted that when examined in detail, the eight applications for review made to the TMRO under s 269ZZC of the Act variously took issue with one or more of each of the findings identified in section 3.2 of TMR 138, and with findings on which one or more of the findings in section 3.2 was based. The following table was said to illustrate the point:

Tab references are to Ex 1; and the submissions at tabs 18, 20, 21 and 23 contain confidential material.            

61    PT Pindo and GHY submitted that the TMRO’s recommendation that all of the findings should be reinvestigated must be read in the context of the applications he received and the content of his report. The TMRO recommended that all of the findings should be reinvestigated having reviewed the eight applications which, between them, particularised grounds on the basis of which each of the findings listed in section 3.2 of TMR 138 should be reinvestigated. The TMRO also had regard to submissions which, pursuant to s 269ZZI(2)(c), he was required to invite from the public, which raised further issues in relation to particular findings. The fact that the TMRO is required to invite such submissions and is entitled to take them into account when deciding what recommendations to make to the Minister (s 269ZZK(4)(b)) indicates that the TMRO is not restricted, when making recommendations to the Minister, to the grounds that KCA & SCA advance in support of reviewing findings.

62    When read fairly and in context, the TMRO’s report does not, according to PT Pindo and GHY, suffer from the deficiency alleged by KCA & SCA. It was one within the meaning of s 269ZZK(2), and the Minister was entitled to act upon it. Even if the report did travel beyond the findings in the applications for review, which was disputed, it would nonetheless be a report within s 269ZZK(2) on the findings that were raised in applications. The remarks made by Customs in its report on the reinvestigation cannot properly bear on the legal characterisation of the TMRO’s report for the purposes of s 269ZZK (cf., KCA & SCA’s submissions at [30] above).

63    Even if it did suffer from the error that KCA & SCA allege, according to PT Pindo and GHY, that error does not of itself entitle KCA & SCA to the relief they seek because it is not material and the provisions of Div 9 of the Act do not demonstrate an intention that an error that is of no consequence should invalidate all subsequent steps in the review process.

64    Reference was made to what Mason CJ said in Bond at 353, namely, that a decision does not ‘involve’ an error of law ‘unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different’.

65    PT Pindo and GHY observed that the findings in TMR 138 in relation to whether the Australian industry had suffered material injury and would do so in the future were specified by them in their respective applications; Woolworths also sought review of Customs’ findings on material injury. They observed that the TMRO’s recommendation that all of the findings in TMR 138 be reinvestigated necessarily included the findings that had been specified by KCA & SCA for review, including Customs’ findings as to material injury; the Minister’s direction to the CEO of Customs that all of the findings be reinvestigated also necessarily included those findings.

66    In the summary of the reinvestigation carried out pursuant to s 269ZZL(3) of the Act, Customs’ concluded that there were reasonable grounds for affirming some of the findings of the previous investigation. However, it also made the following new findings (REP 158, p 9; Ex 1, Tab 39):

    The industry producing like goods has suffered injury in the form of price undercutting in the retail sector;

    the dumping of toilet paper from China and Indonesia has not caused material injury experienced by the Australian industry; and

    material injury to the Australian industry by dumped imports from China and Indonesia is not foreseeable and imminent.

67    According to PT Pindo and GHY, the basis on which Customs recommended to the Minister that the dumping duty notice be revoked, related to findings that applicants for review to the TMRO had specified. Applying the reasoning of Mason CJ in Bond, the deficiency in the TMRO’s report relied on by KCA & SCA, namely, that it recommended that the Minister reinvestigate particular findings not specified in the applications, would not have led the TMRO, Customs or the Minister to a different result from the one they respectively reached. Any findings that went beyond those specified were mere surplusage, and irrelevant to the outcome.

68    PT Pindo and GHY submitted that the consequences of the TMRO’s departure from the steps in s 269ZZK are relevant to assessing whether it was the legislature’s intention that any departure from those steps would result in invalidity: Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at [35]. The issue of material injury was identified in the notice that the TMRO published in relation to his review, giving KCA & SCA the opportunity to put submissions on that issue, which they availed themselves of (Ex 1, Tab 34, pp 5-6). According to PT Pindo and GHY, the fact that KCA & SCA have not suffered injustice in this regard tells against acceptance of the conclusion that the legislature intended that invalidity necessarily be the consequence of departure from any of the steps leading to Customs’ recommendations and the Minister’s decision.

69    For the reasons outlined above, and by the Commonwealth respondents, PT Pindo and GHY contended that the Court will not reach questions as to the appropriate relief in this case.

70    However, they further contended that if the Court is satisfied that KCA & SCA have established a basis for relief, in so far as KCA & SCA rely on s 39B of the Judiciary Act, its grant lies within the discretion of the Court; relief is also discretionary under s 16 of the AD(JR) Act, to the extent that KCA & SCA continue to rely on that Act. Reference was made to SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487, where Black CJ and Allsop J summarised the relevant principles regarding the exercise of that discretion as follows (at [50]):

‘As was said in Bodruddaza v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 228 CLR 65 at [46], the purpose of relief involved in constitutional or statutory writs is a high one – the keeping of officers of the Commonwealth to the law; see also Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [55]. However, as McHugh J said in SAAP v Minister for Immigration and Multicultural Affairs (2005) 228 CLR 294 at [80], discretionary relief may be refused under s 39B if the party’s conduct is inconsistent with the application for relief, such as if there has been delay or if the applicant has waived or acquiesced in the invalidity of the decision. To similar effect, see the discussion in the reasons of Gaudron and Gummow JJ in Aala 204 CLR 82 at [56] – [57]. See also SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; 235 ALR 609 at [28] and Meyers v Casey (1913) 17 CLR 90.’

71    PT Pindo and GHY made the point that while the absence of materiality of any error in the TMRO’s report has already been addressed (see [63] above), the same argument can be made in the context of discretion, bearing in mind that prerogative relief may not be granted if, inter alia, ‘no useful result could ensue’: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Pty Ltd (1949) 78 CLR 389 at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ, see also Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [56] per Gaudron and Gummow JJ.

72    Although the relief sought by KCA & SCA appears to have been calculated to preclude reconsideration of the applications made to the TMRO under s 269ZC of the Act, PT Pindo and GHY contended that the interests of those parties would require the Court to mould relief so as to preserve their statutory entitlement, which they exercised, to have the Minister’s earlier decision reviewed. In circumstances where the TMRO’s recommendation necessarily included Customs’ finding on material injury, which was the critical matter on which Customs recommended, and the Attorney-General accepted, that the dumping duty notice should be revoked, according to PT Pindo and GHY, no useful result could ensue from remitting the matter and relief should be refused in the exercise of the Court’s discretion.

73    Another relevant factor in relation to relief to which PT Pindo and GHY referred is that of delay. They argued that if the TMRO’s report has the implications for which they contend, in terms of the efficacy of decisions made on the basis of it, KCA & SCA could have challenged the report, and the decision of the Attorney-General to accept its recommendations, before Customs proceeded to reinvestigate the dumping duty notice. Instead of taking that course, they did not commence proceedings until 1 April 2010, almost a year after the TMRO prepared his report and several months after the process set in train by that report had reached its ultimate conclusion in the revocation of the dumping duty notice.

74    Finally, PT Pindo and GHY contended that KCA & SCA should not obtain the relief they seek without the Court also taking steps to protect the position of those interested parties who applied to the TMRO for review of the decision to publish the dumping duty notice, and who have conducted their business affairs on the basis that the notice was properly revoked in January 2010. If the Court were minded to grant relief on the basis of the first ground in the amended application, those steps would, according to PT Pindo and GHY include:

(1)    Ensuring that the applications submitted to the TMRO by the eight interested parties are remitted to the TMRO on the basis that he has not prepared a report within the meaning of s 269ZZK; and

(2)    in view of KCA & SCA’s delay in challenging the decisions, ensuring that any relief granted is not retrospective in operation or effect. If the decisions the subject of the amended application are set aside ab initio, there is the possibility that goods which have already been exported to Australia by PT Pindo and GHY since the revocation decision, on the basis that there was no dumping duty, will be retrospectively subject to duty.

Analysis of the Respective Arguments on Ground 1

75    It lies at the heart of KCA & SCA’s case under ground 1 that the TMRO erred when, in the TMRO’s report, he recommended to the Attorney-General that ‘all of the findings made by Customs in [TMR 138] be reinvestigated’ when, in accordance with s 269ZZK(1)(b) of the Act, he should have limited his recommendation to a finding or findings specified in the review applications. For this reason, according to KCA & SCA, the TMRO’s report was not a recommendation within the meaning of s 269ZZK and, in consequence, all subsequent decisions, namely, the reinvestigation decision, the recommendation decision and the revocation decision were infected with the same error and were not authorised by the Act pursuant to which they were purported to be made.

76    As noted in [37] above, it seems to be common ground that each of the ‘findings’ by Customs in section 3.2 of TMR 138 was specified by at least one of the eight applications for review to the TMRO. See, too, the table prepared by PT Pindo and GHY reproduced at [60] above and the table at [7] in the written submissions of KCA & SCA. The findings in section 3.2 of TMR 138 were essentially conclusions or ultimate findings based on findings of primary fact, but were nevertheless properly characterised in TMR 138 as ‘findings’, having regard to the definition of that word in s 269ZZK of the Act.

77    It follows that as each of the ultimate findings by Customs in section 3.2 of TMR 138 was specified by at least one of the eight applications for review to the TMRO, it was open to the TMRO to recommend reinvestigation of one, more or even all of those ultimate findings. And as the Commonwealth respondents submitted (see [35] above), any such recommendation would engage the findings of primary fact, and the reasoning based on such findings of primary fact, that led to the ultimate finding.

78    In the course of their written and oral submissions, KCA & SCA identified, by reference to passages in REP 158, what they said were examples of findings in TMR 138 that were not referred to or disputed in review applications to the TMRO. Indeed, at the passages identified, Customs said as much. The passages identified were at 26.8, 28.9, 33.2, 47.2, 53.9, 58.8, 60.6, 66.8, 68.10, 73.5 and 76.1 of REP 158. But the findings in TMR 138 that were referred to at the identified passages, were all findings of primary fact upon which an ultimate finding in section 3.2 of TMR 138 was reasoned. In my opinion, provided each of the ultimate findings in section 3.2 of TMR 138 were specified in at least one of the eight applications for review to the TMRO, that would be sufficient to entitle the TMRO, in terms of s 269ZZK(1)(b), to recommend reinvestigation not only of all the ultimate findings in section 3.2 of TMR 138, but also all findings of primary fact upon which each ultimate finding in section 3.2 of TMR 138 was reasoned.

79    It follows, in my view, that the TMRO was entitled to recommend, within the limitations of s 269ZZK(1)(b), reinvestigation of all the findings made by Customs in TMR 138; that the Attorney-General was entitled to direct Customs to reinvestigate all such findings; that Customs was entitled to recommend, in REP 158, that the Attorney-General revoke the dumping duty notice published on 31 December 2008; and that the Attorney-General was entitled to revoke the dumping duty notice.

80    I agree with the observation of the Commonwealth respondents that the only deficiency in the TMRO’s report was an omission to ‘set out the finding or findings’ which, in his view, ought to be reinvestigated in accordance with s 269ZZK(2)(b). As they said (see [39] above), this, however, is not an omission which goes to the existence of a ‘recommendation’ upon which the Minister may act under s 269ZZL(2). Failure to comply with subs 269ZZK(2)(b) or subs (c) might mean that the TMRO could be ordered to comply with the provisions; but it does not go to the Minister’s power to direct a reinvestigation.

81    I also agree with the submissions of all respondents that if the TMRO did err by making a recommendation that related to all findings in TMR 138, rather than particular findings that were specified in the applications for review, that error did not have any effect on the outcome of subsequent exercises of power and therefore was not material. For that reason, any error did not affect the validity of the two decisions in respect of which relief was sought (the reinvestigation decision and the revocation decision).

82    For the foregoing reasons, ground 1 cannot be sustained.

83    On the conclusion I have come to, KCA & SCA are not entitled to the relief sought and I am not concerned with whether, in the exercise of the Court’s discretion, relief should be refused on one or more of the grounds canvassed in the Commonwealth respondents’ submissions. As the Commonwealth respondents submitted (see [50] above), viewed as an application for judicial review of the TMRO decision, the application in the present proceeding is late; it is late without any real explanation; and it is prejudicial to the interests of other interested parties. Even if this latter matter could be overcome by appropriate orders, I am inclined to the view that the application is too late and that if it mattered, the Court’s discretion should not be exercised in favour of KCA & SCA.

Ground 2: The revocation decision and the recommendation decision involved an error of law, namely, that they were based on a misconstruction of the term ‘material injury’ in the Act.

Ground 3: The revocation decision and the recommendation decision were otherwise contrary to law.

84    It is convenient to deal with these two grounds together.

85    In their amended application, KCA & SCA particularised ground 2 as follows:

‘The term “material injury” was construed as meaning that if dumping was not the main cause of injury, there was no material injury.’

86    In their amended application, KCA & SCA particularised ground 3 as follows:

‘The finding that injury to the Australian industry caused by the dumping of goods exported from China and Indonesia was not supported on logical grounds. That finding was critical to the revocation decision and the [recommendation decision] and, for that reason, they were irrational, illogical and not based on findings or inferences of fact supported by logical grounds.’

87    Customs addressed the question of whether dumping had caused material injury to the Australian industry in section 10 of REP 158. That question was a necessary step in the Minister’s anti-dumping decision by virtue of s 269TG(1)(b)(i) of the Act and thus a critical part of Customs’ recommendation to the Attorney-General to revoke that decision.

KCA & SCA’s Argument

88    KCA & SCA’s argument was predicated on the following statements taken from section 10 of REP 158 (Ex 1, Tab 39):

‘(1)    Customs and Border Protection considers that while dumping has contributed to the price depression experienced by [KCA & SKA], factors other than the effect of the dumped goods must also be assessed (80.10).

(2)    Having regard to all available information, Customs and Border Protection considers that the presence of [ABC Tissue Products Pty Limited] in the premium sub-sector has had a significant influence on the price levels achieved by the other members of the Australian industry and that the main cause of injury was competition between Australian industry members (81.9 – 82.1).

(3)    Customs and Border Protection considers that injury experienced by the Australian industry was caused more by other factors than by the dumping (82.2).

(4)    … after examining the price relativities and the effects of the dumping on prices in 2007, the injury evidenced through price undercutting was caused more by other factors than by dumping (82.4).

(5)    Customs and Border Protection makes a new finding that:

•    The injury experienced by the Australian industry was caused more by other factors than by the dumping of the goods exported from China and Indonesia;

•    injury to the Australian industry caused by dumping of the goods exported from China and Indonesia was not material (82.5 – 82.6).’

89    KCA & SCA argued that these statements reveal that the CEO of Customs’ conclusion that injury to Australian industry caused by the dumping was not material because it was caused more by other factors than the dumping. However, a finding that there is a greater cause of injury than dumping does not answer the question of whether the injury caused by dumping was material.

90    KCA & SCA argued that ‘material injury’ in the context of the Act is injury which is not immaterial, insubstantial or insignificant: ICI Operations Pty Ltd v Fraser (1992) 34 FCR 564 at 577. Where there is a finding that the Australian industry has suffered injury from a number of causes, s 269TG requires a determination of whether there was a separate material injury or any material incremental injury caused by the dumping over and above detriment caused by those other factors: ICI at 579. KCA & SCA argued that the finding set out at [880] above suggests that Customs did find that there was such separate detriment and that it was not insignificant. According to KCA & SCA, the only logical conclusion that could have been drawn from that finding was that the dumping had caused material injury. However, rather than arriving at this conclusion, Customs determined the question as a matter of relativity, that is, that a lesser cause is not a material cause.

91    For this reason, KCA & SCA argued that the CEO of Customs’ recommendation to the Attorney-General was flawed by jurisdictional error. That being so, it was no recommendation at all and the Attorney-General had no power to revoke the Minister’s dumping decision.

92    In relation to ground 3, KCA & SCA submitted that a decision made by an administrative decision-maker may be affected by jurisdictional error where it is irrational, illogical and not based on findings or inferences of fact supported by logical grounds: SZMDS at [119]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [36] – [37]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [130] – [139]. Customs’ recommendation to the Attorney-General turned on the finding that the dumping did not cause material injury to the Australian industry. That finding, in turn, was based on the finding that, while the dumping had caused injury to the Australian industry, there were other causes of the injury greater than the dumping. According to KCA & SCA, unless Customs understood ‘material injury’ to require there to be a sole cause or greatest cause of injury, there is no logical connection between the finding of greater causes of injury and the finding of no material injury. Thus, the decision to recommend to the Attorney-General that the Minister’s anti-dumping decision be revoked was not based on a finding supported by logical grounds and was infected by jurisdictional error.

The Commonwealth Respondents’ Argument

93    The Commonwealth respondents accepted that ground 2 would be made out if Customs had reasoned as KCA & SCA allege. The parties are at issue as to whether Customs did in fact reason in that way. This issue is addressed below.

94    The same concession is not made in relation to ground 3. The position of the Commonwealth respondents is that ‘irrationality’ in the reasoning of an administrative decision-maker provides a ground of review in itself only when the consequence is that the resulting decision is ‘one at which no rational or logical decision maker could arrive on the same evidence’: SZMDS at [130] per Crennan and Bell JJ. KCA & SCA’s submissions do not appear to go that far; and it could not be maintained that, on the evidence before Customs, no rational person could have reached the conclusion that the imposition of anti-dumping measures was not warranted. Their argument is not that the decision made was beyond plausible justification; it is that the reasoning actually employed contained a lapse in logic.

95    The Court in SZMDS was divided as to whether review for irrationality is limited as submitted by the Commonwealth respondents: cf., Gummow A-CJ and Kiefel J at [38] – [42]; Heydon J at [87]. Even on the broader view advanced by Gummow A-CJ and Kiefel J, the Commonwealth respondents submitted that the presently impugned finding is an instance of ‘intra-mural’ fact-finding (i.e., occurring in the course of exercising discretion rather than at the jurisdictional threshold) (SZMDS at [38]) and a lack of logic therefore does not of itself vitiate the decision.

96    However, these points of principle do not need to be resolved in the light of the Commonwealth respondents’ concession made in connection with ground 2. If Customs reasoned in the manner alleged, KCA & SCA will succeed. If not, both grounds must fail.

Customs’ reasoning

97    KCA & SCA described Customs’ key conclusion as being ‘that injury to Australian industry caused by dumping was not material because it was caused more by other factors than the dumping’: (see [0]) above). However, according to the Commonwealth respondents, this was not the reasoning in REP 158.

98    First, there was no finding in REP 158 that the Australian industry had suffered ‘material injury’ at all. This issue was examined in Chapter 9 of REP 158, where it was found that:

(1)    The ‘Australian industry’ comprised KCA & SCA and two other manufacturers (66);

(2)    the industry had not experienced a loss of sales volume (67), although it had lost market share in the retail sector (68);

(3)    KCA & SCA had experienced price suppression (69), but the industry as a whole had not (71, 72);

(4)    there had been some price depression compared to the two year period prior to 2007 (72);

(5)    imported toilet paper from China and Indonesia undercut the price of the Australian industry in the retail sector, but there was insufficient information to reach any conclusion about the ‘away from home’ sector (73); and

(6)    the Australian industry had not experienced reduced profit and profitability (75).

99     Secondly, Customs’ analysis in Chapter 10 of REP 158 pointed to the conclusion that the impact of dumping was small in absolute as well as relative terms.

(1)     While dumping margins appeared high when expressed as a percentage of the export price, Customs calculated that the weighted average dumping margin equated to a price difference of 3 cents per roll (77, 78).

(2)    In 2007 imports from China and Indonesia were found to have held about 4 percent of the ‘premium’ sub-sector and six percent of the total retail market (78, 79). The volumes of imports, while not negligible (77), never represented a large proportion of the retail market. Customs observed that ‘[w]hether the loss of market share has caused injury to the Australian industry must be assessed in terms of the price depression and price undercutting experienced by the Australian industry’ (79); that is, the loss of market share to goods from China and Indonesia was not seen as a significant injury in itself.

(3)    Analysis of the extent to which Chinese and Indonesian imports undercut the prices of the goods produced by Australian industry showed that, even if their prices were adjusted to un-dumped levels, undercutting would still occur (80).

100    Thirdly, Customs was required by s 269TAE(2A) of the Act to give consideration to whether any injury to the Australian industry was being caused by factors other than dumping, and to avoid attributing any such injury to the exportation of the dumped goods. When Customs recorded its conclusion that injury had been caused ‘more by other factors’ (82.5), it was noting the outcome of that process rather than expressing its ultimate assessment of whether dumping had caused material injury. Contrary to the submissions of KCA & SCA, consideration of the relative importance of other factors did not represent the totality of Customs’ analysis.

101    Hence, when Customs came to summarise its new findings on ‘causation and materiality’, it said:

‘Customs and Border Protection makes a new finding that:

•    the injury experienced by the Australian industry was caused more by other factors than by the dumping of the goods exported from China and Indonesia;

•    injury to the Australian industry caused by dumping of the goods exported from China and Indonesia was not material.’

102    According to the Commonwealth respondents, KCA & SCA’s argument requires these propositions to be read as if they were connected by the words ‘and therefore’. No such words were used by Customs, and there is no basis for reading them in. The first proposition summed up Customs’ consideration of the issue highlighted by s 269TAE(2A). The second proposition relied in part on Customs’ assessment of the role played by other causes, but also on its analysis of such matters as the volume of dumped goods and the effect that dumping actually had on prices.

103    This analysis is confirmed by Customs’ summary of its findings at the end of REP 158 (at 85), where the same two points appear as part of a list of five propositions which also encompasses the existence of dumping, the existence of injury and the likelihood of future dumping. Each proposition in this list is connected to the next one by the word ‘and’ or ‘but’ (or nothing), indicating that there is not intended to be any hierarchy among them; each is stated as a conclusion, without supporting reasoning; and none is expressed as ancillary to or supportive of another. The conclusion concerning the importance of other factors in causing injury should therefore be understood as one that Customs considered needed to be stated in its own right (presumably as a result of the requirement in s 269TAE(2A), and not as a complete description of the reasoning process leading to its finding that dumping had not caused material injury.

104    Finally, the Commonwealth respondents submitted that the usual approach of Customs, as displayed in this matter too, is to identify what if any injury has occurred to the Australian industry; then to seek to identify the causes of the injury; and then assess whether any injury caused by dumping is material. The process does not involve characterising the totality of injury as material at the outset and then assessing the role played by dumping in that total injury. The identification of injury, and acceptance that dumping plays some role in causing that injury, is not inconsistent with a conclusion that dumping is not the cause of ‘material’ injury.

PT Pindo and GHY’s Argument

105    PT Pindo and GHY’s argument on grounds 2 and 3 had a resonance with that of the Commonwealth respondents.

106    Reference was made to the caution of Graham and Flick JJ in Minister of State for Home Affairs v Siam Polyethylene Co Ltd (2010) 187 FCR 229 at [62], in the context of the Trade Measures Branch report at issue in that case, that it is dangerous to focus too much attention on any particular part of such a report and to attempt to read that part free from the broader context in which it appears. Such caution merely reflects the over-arching principle that administrative decisions should be read sensibly and not overzealously in the pursuit of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 – 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

107    Reference was also made to s 269TAE(2A) of the Act which provides that when making a determination, for the purposes of s 269TG, as to whether material injury to an Australian industry has been or is being caused or is threatened or would or might have been caused by the exportation of goods to Australia from the country of export, the Minister ‘must consider whether any injury to an industry, or hindrance to the establishment of an industry, is being caused or threatened by a factor other than the exportation of those goods’. A non-exhaustive range of factors is set out in subparas (a) to (f), including ‘contractions in demand or changes in patterns of consumption’ (subpara (c)) and ‘restrictive trade practices of, and competition between, foreign and Australian producers of like goods’ (subpara (d)).

108    PT Pindo and GHY made the observation that s 269TAE(2A) derives from Art 3.5 of the Implementation Agreement on Article VI of the General Agreement on Tariffs and Trade (‘GATT’). In United States – Certain Hot-Rolled Steel Products from Japan (WT/DS184/AB/R), the Appellate Body of the World Trade Organisation said that the assessment required by Art 3.5 (at ([223]) –

‘must involve separating and distinguishing the injurious effects of the other factors from the injurious effects of the dumped imports. If the injurious effects of the dumped imports are not appropriately separated and distinguished from the injurious effects of the other factors, the authorities will be unable to conclude that the injury they ascribe to dumped imports is actually caused by those imports rather than the other factors.’

109    PT Pindo and GHY submitted that when read fairly and as a whole, it is clear that Customs did precisely what the Appellate Body decision requires. It addressed the significant influence of price competition between members of the Australian industry, separated that influence from the impact of dumping, and concluded that the injury caused to the Australian industry by the dumping, in the form of price depression and price undercutting, was not material. It was open to Customs to reach that conclusion and it is not attended by any error of the nature alleged by KCA & SCA.

110    PT Pindo and GHY observed that the first issue Customs looked at in relation to causation and materiality, in section 10.4, was KCA & SCA’s loss of market share in the retail sector to dumped imports from China (the market share of dumped imports from Indonesia declined in the relevant period) (78, 79). In order to assess whether that loss in market share had caused injury to the Australian industry, Customs moved on the issues of price depression and price undercutting. So far as the former was concerned, Customs noted that by the time Woolworths introduced its premium product, for which it used the dumped imports, KCA & SCA were already subject to price depression, possibly from the marked increase in the sales volumes of the ABC Tissue Products Pty Limited’s (‘ABC’) premium product from 2005, with further price competition arising when the Woolworths premium product entered the market in December 2006 (79).

111    They further observed that before it could draw any conclusions about ‘whether the dumped goods caused the price depression’, Customs assessed the pricing relationship between KCA & SCA’s products, ABC’s product and the dumped products by looking at the price undercutting that had occurred. In order to do this, Customs calculated an actual dumping margin expressed in terms of cents per roll, ‘because it will demonstrate the significance of the dumping amount in pricing in the Australian market as opposed to the measure of the amount in the country of export’ (77).

112    Focussing on Woolworths’ Select brand, as the product accounting for significant import volumes from China and Indonesia, and taking into account the relative volumes of the exports from China and Indonesia of various roll configurations, Customs worked out a weighted average dumping amount of 3 cents per roll (78). Customs then added that amount of margin to Woolworths’ cost price to arrive at an adjusted un-dumped price, and compared it with the prices available from KCA & SCA, Woolworths and ABC. The results of this exercise are shown in Confidential Attachment A to REP 158 (Ex 1, Tab 40). As Customs observed (80):

‘•    for standard rolls, the un-dumped price is marginally above Woolworths’ cost price and below the prices of Australian produced premium products;

•    for double rolls from China, the un-dumped price is marginally above Woolworths’ cost price and below the cost price of Australian produced premium products;

•    for double rolls from Indonesia, the un-dumped price is above the Chinese un-dumped price and below the cost price of Australian produced premium products; and

•    price competition is evidence between members of the Australian industry.’

113    In other words, and as Customs summarised the position, the adjusted un-dumped cost prices for Woolworths’ Select product remained below the cost prices of the premium products of KCA & SCA (80). At the same time, the cost price for ABC demonstrated the existence of price competition between members of the Australian industry. In their examination of the effect of price depression and undercutting, Customs observed, by reference to the sales volume and average price of ABC’s premium product, that its presence in the premium sector had had ‘a significant influence on the price levels achieved by the other members of the Australian industry and that the main cause of injury was competition between Australian industry members’ (81, 82).

114    In determining the materiality of the injury caused by dumping, Customs had the benefit of its analysis as to the presence of other factors that contributed to the injury to the Australian industry. Having identified factors other than dumping which were causing injury, and not attributing that injury to the dumped imports, Customs found that any injury caused by the dumping was not material. In PT Pindo and GHY’s submission, Customs’ approach did not rest on irrational or illogical grounds, such as is contended for by KCA & SCA in the third ground of the amended application.

Analysis of the Respective Arguments on Grounds 2 and 3

115    In my view, these grounds cannot be sustained for one simple reason. Contrary to KCA & SCA’s allegation, Customs did not reason its conclusion that injury to the Australian industry caused by dumping of toilet paper from China and Indonesia was not material because that injury was caused more by other factors than the dumping.

116    To properly understand the process of reasoning by which Customs reached its conclusion that the injury to the Australian industry caused by the dumping of the goods from China and Indonesia was not material, one has to have regard not only to section 10 of REP 158 headed: Has Dumping Caused Material Injury, but to section 8 headed: Dumping, section 9 headed: Economic Condition of the Australian Industry, and section 11 headed Effect of Future Dumping. So much is to heed the caution of Graham and Flick JJ in Siam Polyethylene Co Ltd at [62] referred to in [106] above.

117    In sections 8 and 9, Customs had concluded toilet paper exported from Indonesia and China had been dumped and that the Australian industry experienced injury (note not ‘material injury’) in the following forms:

    Loss of market share.

    Price depression.

    Price undercutting.

118    In the course of doing so, Customs found:

    In relation to volume effects:

(i)    The Australian industry had not experienced a loss of sales volume;

(ii)    the Australian industry lost market share in the retail sector in 2007;

(iii)    market share for the Australian industry and imports in the ‘away from home’ (AHF) sector could not be assessed; and

(iv)    the retail sector was considered to be representative of the total toilet paper market.

    In relation to price effects:

(i)    The Australian industry experienced price depression in the toilet paper market;

(ii)    the Australian industry as a whole had not experienced price suppression;

(iii)    imported premium toilet paper from China and Indonesia undercut the price of the Australian industry in the retail sector; and

(iv)    sufficient information was not available to make any conclusions about price undercutting in the AHF sector.

    In relation to profit effects:

The Australian industry had not experienced reduced profit and profitability.

    In relation to other economic factors:

Insufficient information was available to form a view on injury for the following other economic factors -

•    Assets.

•    Capital investment and return on investment.

•    Research and development expense.

•    Revenue.

•    Capacity and capacity utilisation.

•    Employment.

•    Productivity.

•    Stocks.

•    Cash flow measures.

•    Wages.

119    In section 10, Customs refined its conclusions in sections 8 and 9 in the course of determining:

(1)    The extent to which the injury to the Australian industry was caused by factors other than dumping; and

(2)    whether the injury caused by dumping was material.

120    In the course of doing so:

(1)    Customs observed that while the dumping margins found in section 8 appear high when the dumping amount is expressed as a percentage of the export price, in its causation analysis it considered that the actual dumping margin when expressed in terms of cents per roll was more relevant because it demonstrated the significance of the dumping amount in pricing in the Australian market.

(2)    Customs found that when account was taken of the relative volumes of the exports from China and Indonesia of the various roll configurations, the average weighted dumping amount was 3 cents per roll.

(3)    In relation to volume affects, Customs’ finding in section 9 that the Australian industry lost market share in the retail sector to dumped exports was refined to dumped exports from China, but not from Indonesia.

(4)    In relation to price effects, Customs’ finding in section 9 that the Australian industry had experienced injury in the form of price depression and price undercutting from the dumping of the exported goods was refined by a finding ‘that the presence of ABC in the premium sub-sector had had a significant influence on the price levels achieved by the other members of [the] Australian industry and that the main cause of injury was competition between Australian industry members’: REP 158, pp 81, 82.

121    It is clear, in my view, that Customs’ reference to ‘injury’ in the above context is a reference to injury in the form of price depression and price undercutting, not overall injury to the Australian industry. So much is borne out by the passage in section 10.4.5 of REP 158, p 82, which follows:

‘Customs and Border Protection has considered the performance of the Australian industry as a whole, and that of the two applicants individually, over the period for which information is available (2004 to 2007) and concludes that:

•    the Australian industry lost market share to dumped exports from China;

•    the price depression must be assessed in conjunction with price undercutting; and

•    after examining the price relativities and the effects of the dumping on prices in 2007, the injury evidenced through price undercutting was caused more by other factors than by dumping.’

122    So understood, Customs’ ultimate finding that –

‘the injury experienced by the Australian industry was caused more by other factors than by the dumping of the goods exported from China and Indonesia’

is a reference to injury in the form of price depression and price undercutting, not overall injury to the Australian industry.

123    On the other hand, Customs’ next ultimate finding that –

‘injury to the Australian industry caused by dumping of the goods exported from China and Indonesia was not material’

is a reference to the overall injury to the Australian industry caused by dumping. That finding was open on the basis that the only injuries to the Australian industry that were found by Customs to be caused by dumping of the exported goods were (1) a loss of market share in the retail sector to dumped goods from China (but not Indonesia); and (2) the price depression and price undercutting that had occurred not attributable to the main cause of that latter injury.

124    That such a finding was open was not challenged by KCA & SCA, only the reasoning process by which Customs arrived at that finding. Two further findings of Customs in section 11 of REP 158 leading to its final ultimate finding that –

‘material injury to the Australian industry by dumped goods from China and Indonesia is not foreseeable and imminent’

support the view that the immediately anterior ultimate finding was open. They were that:

(1)    The volume of toilet paper exported from China and Indonesia was relatively small in terms of the retail sector, and by extension the toilet paper market; and

(2)    the dumping margins for the majority of goods from China and Indonesia were relatively small.

125    For these reasons, I reject KCA & SCA’s allegation that Customs reasoned its conclusion that injury to the Australian industry caused by dumping of toilet paper from China and Indonesia was not material because that injury was caused more by other factors than the dumping. Customs did not so reason that conclusion, nor did it misconstrue the term ‘material injury’ as it stands in the Act.

126    Moreover, neither the recommendation decision nor the revocation decision involved an error of law, nor were they otherwise contrary to law on the ground that they were irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

Conclusion

127    The application must be dismissed. KCA & SCA must pay the costs of the Commonwealth respondents and the costs of PT Pindo and GHY, as agreed or taxed.

Associate:

Dated:    24 March 2011