FEDERAL COURT OF AUSTRALIA

Guardian Industries Corp. Ltd v Attorney General of the Commonwealth of Australia [2013] FCA 780

THE COURT ORDERS THAT:

1.    The further amended originating application be dismissed.

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

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

REASONS FOR JUDGMENT

ISSUES

1    In this matter the applicant, Guardian Industries Corp Limited (Guardian), challenges the validity of various actions taken under the Customs Act 1901 (Cth) (the Customs Act) which culminated in the Minister for Home Affairs affirming a decision of the Attorney-General of the Commonwealth (the Attorney General, also referred to as the Minister below as this is the expression used in the statute) to declare that s 8 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) (the Duty Act) applies to clear float glass (CFG) 3-12 mm thick exported to Australia from China, Indonesia and Thailand. Guardian imports CFG from Thailand to Australia. The effect of the decision of the Minister is to subject the imports to dumping duty which Guardian is liable to pay.

2    Although five separate actions are challenged in the proceeding, at the core of each challenge is the operation of s 269TDA(13) of the Customs Act. This section provides:

If:

(a)    application is made for a dumping duty notice; and

  (b)    in an investigation, for the purposes of the application, of goods the subject of the application that have been, or may be, exported to Australia from a particular country of export, the CEO is satisfied that:

i.    there has been, or may be, dumping of some or all of those goods; but

ii.    the injury, if any, to an Australian industry or an industry in a third country, or the hindrance, if any, to the establishment of an Australian industry, that has been, or may be, caused by that export is negligible;

the CEO must terminate the investigation so far as it relates to that country.

3    The CEO is the Chief Executive Officer of Customs.

4    The essence of Guardian’s case is that by reason of s 269TDA(13) the CEO was bound to consider the termination of the investigation into the export of CFG from Thailand to Australia and did in fact consider the termination of the investigation, but in such a way that the consideration miscarried so as to be no consideration at all, with the consequence that the subsequent actions of the CEO in making a statement of essential facts and reporting and recommending to the Minister that s 8 of the Duty Act be applied, of the Minister in deciding to apply s 8, of the Trade Measures Review Officer (the TMRO) in recommending to the Minister for Home Affairs that the decision of the Minister be affirmed, and of the Minister for Home Affairs in affirming the decision are all invalid.

5    Guardian identified eight issues as relevant, the substance of which is as follows:

(1)    Was the CEO subject to a duty to consider terminating the investigation under s 269TDA(13)(b) insofar as it related to the export of CFG from Thailand to Australia?

(2)    Does s 269TDA(13)(b) require that the “negligible injury” caused by the dumping relate to the particular country of export?

(3)    Did the CEO’s consideration of whether to terminate this investigation miscarry because the CEO failed to consider the “negligible injury” caused by the dumping relating to Thailand and, instead, considered only the injury caused by the dumping on a cumulative basis from Indonesia, China and Thailand?

(4)    If the answer to (3) above is yes, does this mean that the CEO’s report and the subsequent actions identified above are invalid?

(5)    If the answer to (4) above is yes, should relief be refused in the exercise of discretion?

(6)    Was the CEO’s failure to terminate the investigation insofar as it related to Thailand manifestly unreasonable?

(7)    If the answer to (6) above is yes, does this mean that the CEO’s report and the subsequent actions identified above are invalid and should relief be refused in the exercise of discretion?

(8)    Did the CEO’s investigation otherwise miscarry because, in considering whether there was material injury to Australian industry, the CEO focused on 3-6mm CFG and not all of the goods the subject of the investigation?

6    Guardian’s application for review is brought under both the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth).

STATUTORY SCHEME

7    Part XVB of the Customs Act embodies legislative amendments arising from Australia’s obligations under the General Agreement on Tariffs and Trade 1994 (GATT) including the Agreement on Implementation of Article VI of GATT. The statutory scheme is complex but it is convenient, in the present case, to identify the provisions which were in fact engaged.

8    Division 2 of Pt XVB is the starting point relevant in this case. Section 269TB enables a person, in certain circumstances and subject to certain conditions (including support of a sufficient part of the Australian industry), to apply to Customs to request that the Minister publish a dumping duty notice. A competitor of Guardian made such an application in February 2010.

9    When such an application is lodged the CEO must notify the government of the country, or of each country, whose exporters are nominated in the application (s 269TB(2A)).

10    Under s 269TC the CEO is required to examine the application within 20 days. If not satisfied about various matters, including that there appear to be reasonable grounds for the publication of a dumping duty notice, the CEO must reject the application and notify the applicant accordingly. If, however, the CEO decides not to reject the application then the CEO must give public notice of that decision. The notice must contain information specified in s 269TC(4) which includes information about each of the key steps in the process of investigation and reporting which is required.

11    By s 269TDAA the CEO must place on the public record a statement of essential facts on which the CEO proposes to base a recommendation to the Minister in relation to the application. In formulating the statement of essential facts the CEO must have regard to the application and any submissions received within the prescribed time and may have regard to any other matters the CEO considers relevant.

12    Section 269TDA, as noted, concerns circumstances in which the CEO must terminate an investigation. In addition to s 269TDA(13), which is set out above and is the relevant provision in this case, there are other provisions which also require the CEO to terminate an investigation. For example, under 269TDA(1) the CEO must terminate an investigation if satisfied there has been no dumping or, where there has been dumping, but the dumping margin (calculated as required) is less than 2%. Under s 269TDA(3) the CEO must terminate the investigation if the total volume of dumped goods is negligible (a defined term for the purposes of the section). The termination of the investigation is expressed as termination “so far as it relates to the exporter” (s 269TDA(1)) or so far as it relates to that country (subss 269TDA(3) and (13)).

13    Section 269TDA(15) provides that if the CEO decides to terminate an investigation so far as it relates to a particular exporter or country of export the CEO must give public notice of the decision and give notice to the applicant, the exporter and the country of export, and inform the applicant of the right to apply for a review of the decision. Reviews are carried out by the TMRO under Div 9 of Pt XVB. In effect, if the CEO has decided to terminate an investigation a review can result in the CEO being directed to reconsider the matter. It will be noted that there is no right vested in a person to review any decision of the CEO not to terminate an investigation.

14    Under s 269TEA, if an application has been made and the CEO has initiated an investigation, the CEO must “after holding such an investigation and before the end of the period for reporting to the Minister…” 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).

15    Section 269TEA(5) provides that:

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.

16    Section 269TE is also relevant. It provides (in part) as follows:

(1)    In this section:

"decision" means:

(a)    a decision of the CEO under section 269TC or 269TD; or

(b)    a decision contained in a report by the CEO under section 269ZZL.

"recommendation" means:

(a)    a recommendation included in a report prepared by the CEO under     section 269TEA, 269ZDA, 269ZDBG, 269ZG or 269ZHF; or

(b)    a recommendation by the CEO to the Minister under section 269TEB     or 269X.

(2)    If the CEO is required, in making a recommendation or decision, to     determine any matter ordinarily required to be determined by the     Minister under this Act or the Dumping Duty Act, the CEO must     determine the matter:

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

(b)    having regard to the considerations to which the Minister would be     required to have regard if the Minister were determining the matter.

17    It will be noted that there is no reference to s 269TDA (the termination of an investigation provision) in the definitions of “decision” and “recommendation” above.

18    Div 2 of Pt XVB is then engaged. If the Minister has received a recommendation from the CEO then the Minister must decide whether or not to publish a dumping duty notice within a prescribed time period (s 269TLA).

19    Relevantly, s 269TG(2) provides:

(2)    Where the Minister is satisfied, as to goods of any kind, that:

(a)    the amount of the export price of like goods that have already been     exported to Australia is less than the amount of the normal value of     those goods, and the amount of the export price of like goods that     may be exported to Australia in the future may be less than the     normal value of the goods; and

(b)    because of that, material injury to an Australian industry producing     like goods has been or is being caused or is threatened, or the     establishment of an Australian industry producing like goods has     been or may be materially hindered;

the Minister may, by public notice (whether or not he or she has made, or proposes to make, a declaration under subsection (1) in respect of like goods that have been exported to Australia), declare that section 8 of the Dumping Duty Act applies to like goods that are exported to Australia after the date of publication of the notice or such later date as is specified in the notice.

20    The “export price” of goods is a concept regulated by detailed provisions in s 269TAB. Similarly, the “normal value” of goods is regulated by s 269TAC. Section 269TACB also requires the Minister, where an application has been made and export prices and normal prices established, to determine whether dumping has occurred by comparing the export and the normal prices. By s 269TACB(4):

If, in a comparison under subsection (2), the Minister is satisfied that the weighted average of export prices over a period is less than the weighted average of corresponding normal values over that period:

(a)    the goods exported to Australia during that period are taken to have     been dumped; and

(b)    the dumping margin for the exporter concerned in respect of those     goods and that period is the difference between those weighted     averages.

21    In terms of “material injury” to an Australian industry including for the purpose of s 269TG, the Minister may have regard to the factors in s 269TAE but subject to other provisions including subss 269TAE(2A) and (2C). Under s 269TAE(2A) the Minister must consider whether any injury is being caused by a factor other than the exportation of the goods. Section 269TAE(2C) provides that:

In determining, for the purposes referred to in subsection (1) or (2), the effect of the exportations of goods to Australia from different countries of export, the Minister should consider the cumulative effect of those exportations only if the Minister is satisfied that:

(a)    each of those exportations is the subject of an investigation; and

(b)    either:

(i)    all the investigations of those exportations resulted from     applications under section 269TB lodged with the Customs     on the same day; or

(ii)    the investigations of those exportations resulted from     applications under section 269TB lodged with the Customs     on different days but the investigation periods for all the     investigations of those exportations overlap significantly;     and

(c)    the dumping margin worked out under section 269TACB for the     exporter for each of the exportations is at least 2% of the export price     or weighted average of export prices used to establish that dumping     margin; and

(d)    for each application, the volume of goods the subject of     the     application that have been, or may be, exported to Australia over a     reasonable examination period (as defined in subsection     269TDA(17)) from the country of export and dumped is not taken to     be negligible for the purposes of subsection 269TDA(3) because of     subsection 269TDA(4); and

(e)    it is appropriate to consider the cumulative effect of those     exportations, having regard to:

(i)    the conditions of competition between those goods; and

(ii)    the conditions of competition between those goods and like     goods that are domestically produced.

22    Although not engaged in this case, it should be noted that under s 269TAG the Minister may initiate an investigation whether or not an application has been made. Any such investigation is to be carried out in accordance with the Minister’s requirements and the Minister must ensure these requirements and any anti-dumping action taken are consistent with Australia’s obligations under the World Trade Organization Agreement. By s 269TAG(4):

The Minister must not take such anti-dumping measures unless the Minister:

(a)    has determined any matters which the Minister would be required to     determine; and

(b)    is satisfied of any matters of which the Minister would be required to     be satisfied;

in order to take those measures if the investigation had been carried out in accordance with the requirements of the other provisions of this Part.

23    Division V of Pt XVB concerns reviews of anti-dumping measures. A person affected by such measures cannot apply for a review within 12 months after publication of a dumping duty notice (s 269ZA(2)).

24    Division 7 of Pt XVB contains procedural and other provisions. By s 269ZJ(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, each application or request under section 269ZDBC that leads to an inquiry 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.

FACTS

25    In February 2010 a local producer of CFG lodged an application with Customs requesting the publication of a dumping duty notice in respect of CFG exported to Australia from China, Indonesia and Thailand.

26    In April 2010 Customs published Report No 159 which recommended that the CEO decide not to reject the application. This report identified the investigation period as 1 April 2009 to 31 March 2010.

27    On 23 June 2010 Guardian made a submission to Customs concerning the application. Amongst other things this submission said that the investigation insofar as it relates to Guardian must be terminated as analysis showed that there had been no or negligible dumping of CFG by Guardian.

28    On 12 October 2010 Guardian made a supplementary submission. This supplementary submission said that on the basis of the annual report of CSR Limited (the parent of the local manufacturer which made the application, known as Viridian) it was clear that the injury suffered by Viridian had been caused by extraneous factors and not the exportation of CFG, with the consequence that the investigation must be terminated.

29    On 5 November 2010 the CEO published a statement of essential facts. This statement noted that the CEO proposed to recommend to the Minister that a dumping duty notice be published in respect of CFG exported to Australia from China, Indonesia and Thailand except for one Chinese exporter. Amongst other things this statement identified that CFG exported by Guardian from Thailand to Australia during the investigation period was dumped at a dumping margin of 3.8%. In section 8 of the statement (“Has dumping caused material injury?”) the following appeared:

8.1    Preliminary findings

CFG exported to Australia from China, Indonesia and Thailand at dumped prices has caused material injury to the Australian industry producing like goods.

8.2    Introduction

A dumping duty notice may be published where:

-    the amount of the export price of the goods is less than the amount of the normal value of those goods; and

-    because of that, material injury to the Australian industry producing like goods has been or is being caused or is threatened, or the establishment of an Australian industry producing like goods has been or may be materially hindered.

In making a determination whether material injury to an Australian industry has been caused by the dumped imports, any injury caused by a factor other than the exportation of the goods must not be attributed to the exportation of those goods.

The investigation must be terminated so far as it relates to that country where injury, if any, to an Australian industry that has been caused by that dumping is negligible.

8.3    Cumulation of injury

In determining the effect of the exportation of the goods to Australia from different countries of export, the cumulative effect of those exportations can be considered if it is appropriate to consider the cumulative effect of those exportations, having regard to:

-    the conditions of competition between the exported goods; and

-    the conditions of competition between the exported goods and the like goods that are domestically produced.

The conditions of competition between imported and domestically produced CFG are similar. The domestically produced CFG can be directly substituted with the exported CFG.

Some importers of CFG have imported from at least two of the countries subject to the investigation. This indicates that the products are used by the same or similar customers.

The goods are alike, have similar specifications and end-uses, and compete in the same markets. The conditions of competition are such that it is appropriate to consider the cumulative effect of the dumped imports fro China, Indonesia and Thailand.

Guardian submitted that its product offering has a number of differentiating features compared to the exporters from China and Indonesia. These differentiating features, Guardian argues, are quality, characteristics, product range, packaging, and customer service.

Three of the six importers visited purchased CFG from Guardian and another supplier of CFG from China and/or Indonesia for the same purposes. Some of them also purchased CFG from Viridian. In addition, a search of the Customs and Border Protection import database indicates that many of Guardian’s Australian customers also source CFG from other exporters in China and/or Indonesia. It is clear that Guardian’s CFG competes directly with locally manufactured CFG and CFG imports from China and Indonesia. Therefore, it is appropriate to consider the cumulative effect of CFG exports by Guardian.

30    In section 8.7.2, relating to price undercutting, the statement contains the following paragraphs:

A price undercutting analysis was conducted at a macro and micro level, comparing Viridian’s selling prices for external sales with the selling prices in Australia for CFG imported from China, Indonesia and Thailand. The prices were calculated at the free-into-stores (FIS) level as this best represents the point at which Viridian’s prices compete with imported CFG. The FIS prices for imported CFG were calculated using the verified cost, insurance and freight (CIF) export price, plus the verified into-store-costs of the most efficient importer.

At the macro level, the comparison of these prices from all three countries with Viridian’s prices indicated that the imported goods were consistently undercutting Viridian’s price. The levels of price undercutting were significant, although the magnitude of undercutting as greater for exports of CFG from China and Indonesia than for exports from Thailand.

At the micro level, certain Viridian customers were identified as also sourcing CFG from the verified exporters during the investigation period. The price undercutting analysis was conducted by comparing each particular customer’s quarterly weighted average purchase price from Viridian and the exporter. This analysis also found that Viridian’s prices have been consistently and significantly undercut by CFG exported to Australia at dumped prices.

It is reasonable to expect that Viridian, as the local supplier, would be able to achieve some degree of price premium over the imported CFG prices. Such a premium might be realised in the market for reasons including shorter lead times (just-in-time), delivery options (eg. Viridian ‘float-liner’), or after sales service and support. While this notional premium cannot be accurately measured, the magnitude of the price undercutting margins in relation to exports from China and Indonesia are not so small as to be negated by any reasonable measure of the price premium. However, in the case of exports from Thailand, the margins of undercutting are significantly diluted after taking into account a reasonable amount for price premium.

31    Section 8.9 deals with other causes of injury experienced by Viridian.

32    Section 8.10 deals with the materiality of injury caused by dumping including the following:

Notwithstanding the likelihood that factors other than dumping have caused injury to Viridian, it is evident that the CFG exported to Australia from China, Indonesia and Thailand at dumped prices have also had an injurious effect on Viridian.

The magnitude of the dumping margins has contributed to the ability of CFG exporters from China, Indonesia and Thailand to significantly undercut Viridian’s prices. In order to maintain volumes in a price sensitive and transparent market, Viridian did not increase prices despite increased costs. Therefore the dumping prevented Viridian price increases, which would have occurred, to a significant degree.

As a consequence, Viridian lost profits and profitability. Therefore, exports of CFG to Australia from China, Indonesia and Thailand have caused material injury to the Australian industry producing like goods.

33    On 25 November 2010 Guardian made a submission to the CEO in respect of the statement of essential facts. Amongst other things Guardian submitted that in the statement of essential facts the CEO had failed to analyse the effect of dumping on a country-by-country basis and that the effect of dumping had only been analysed on a cumulative basis with the consequence that the CEO had failed to give proper consideration to s 269TDA(13) of the Customs Act and thereby erroneously failed to terminate the investigation in respect of Thailand. This submission noted that the dumping margin found was 3.8% and, given that the injury suffered by Viridian was also a result of other causes, “the only available and therefore reasonable conclusion is that any injury caused by exports from Thailand is negligible”. The submission concluded with Guardian repeating its earlier submissions that the investigation as a whole or at least insofar as it relates to Thailand must be terminated pursuant to s 269TDA(13).

34    In December 2010 the CEO published a report, Termination Report No 159B. This report contained a recommendation in these terms:

It is recommended that the CEO be satisfied that:

-    there has been, or may be, dumping of some or all CFG; but

-    the injury, if any, to the Australian industry that has been, or may be, caused by that dumping is negligible.

If the CEO accepts this recommendation, to give effect to the decision, the CEO must terminate the investigation into the alleged dumping of CFG exported to Australia from China, Indonesia and Thailand by publishing the attached notice at Appendix A.

35    This report said that the dumping margin for CFG exported by Guardian from Thailand during the investigation period was 3.5%. In section 8, dealing with the question of whether the dumping has caused material injury, there is recorded a finding that the degree of price suppression and consequently lost profit and profitability, if any, to Viridian that has been caused by dumping is negligible. Section 8 refers to much of the same material as the statement of essential facts but, in section 8.7.2, dealing with price undercutting, there is some additional analysis to the effect that even if imports were at undumped prices Viridian’s prices would still be undercut, which indicates that factors other than dumping were contributing to the price suppression experienced by Viridian. There is also a new section, section 8.7.5 dealing with CFG exported from Thailand, which is in the following terms:

8.7.5    CFG exported from Thailand

In response to the SEF, Guardian claims that proper consideration was not given to section 269TDA(13). It states that if a country-by-country analysis was conducted, the investigation so far as it relates to Thailand must be terminated as injury caused by the goods at dumped prices from Thailand is negligible. Guardian argues that this conclusion can be made due to fact that the dumping margin for Thailand is not much more than 3.8% (3.5% after the revision in section 6.6.1 above) and that exports from Thailand do not substantially undercut Viridian’s prices.

Although the undercutting analysis in section 8.7.2 above found that the price undercutting by CFG from Thailand is not as great as CFG from China and Indonesia, it is not immaterial. The investigation found that the magnitude of the dumping during the investigation period by Guardian was not negligible. Furthermore, as discussed in section 8.3 above, it is also reasonable to consider the cumulative effect of dumped imports from China, Indonesia and Thailand.

36    In accordance with the termination report the CEO decided to terminate the investigation under s 269TDA(13) of the Customs Act.

37    In January 2011 Viridian lodged an application with the TMRO requesting a review of the termination decision.

38    On 21 March 2011 the TMRO published a decision revoking the termination of the investigation primarily on the basis that further consideration should be given to certain areas, in particular the causal connection between dumping and other extraneous factors and any injury.

39    On 9 August 2011 the CEO published another statement of essential facts in relation to the resumed investigation. In addition to setting out the history of its previous investigation, the termination of that investigation and the TMRO’s review decision this statement of essential facts contained additional analysis. In respect of its analysis of price it was said that Customs had focussed on 3, 4, 5 and 6 mm CFG as most external sales of CFG over the relevant period were of 3, 4, 5 and 6 mm CFG. Section 6 dealt with the question of whether dumping had caused material injury. This section repeated the requirement that the investigation be terminated insofar as it relates to “that country where injury, if any, to an Australian industry that has been caused by that dumping is negligible” citing s 269TDA(13) of the Customs Act. Also in section 6 is additional analysis including analysis about price undercutting margins which appeared as follows:

The levels of price undercutting found at the macro level in the resumed investigation are shown in the following table. Verified FIS export prices were compared to Viridian’s average FIS external sales prices.

Table 8: the price undercutting margin during the investigation period

Source: confidential attachment 3: price undercutting

Table 8 shows that:

▪    Viridian’s external sales prices were undercut by exports from China, Indonesia and Thailand during the investigation period; and

▪    The levels of price undercutting were greater for China and Indonesia than for exports from Thailand.

40    The additional analysis also included the impact of the increasing value of the Australian dollar which resulted in the conclusion that the adjusted price undercutting margins for Thailand were 0% for 3 mm CFG, 4% for 4 mm CFG, 3% for 5 mm CFG and 5% for 6 mm CFG. The CEO also included an analysis comparing prices of the imports to the prices of Viridian if there had been no dumping and ignoring the effect of the increased value of the Australian dollar. This showed that Viridian’s prices exceeded those of Guardian by 1% for 3 mm CFG, 5% for 4 mm CFG, 8% for 5 mm CFG and 9% for 6 mm CFG. The CEO also considered the effect of the price premium Viridian would be able to charge as the local supplier. At a 6% price premium this analysis showed that Viridian’s prices compared to those of Guardian were -5% for 3 mm CFG, -1% for 4 mm CFG, 2% for 5 mm CFG and 4% for 6 mm CFG. The statement said that the various findings tended to support the conclusion that the dumping did not cause material injury to the Australian industry.

41    On 29 August 2011 Guardian made another submission to the CEO in respect of the statement of essential facts for the resumed investigation. This submission included the following statement:

In accordance with the findings of fact made by Customs in Statement of Essential Facts No 159C and the mandatory legal obligation imposed by section 269TDA(13), the Chief Executive Officer has no option but to terminate the investigation generally or at least insofar as it relates to Thailand. If the Chief Executive Officer were to do otherwise then that would amount to a denial of procedural fairness and would constitute an error of law.

In support of this submission, we refer Customs to, and repeat, the submissions previously made by us on behalf of Guardian in our letters to Customs:

1    dated 23 June 2010 in section 2 at pages 2 and 3 under the heading “Any injury is self-inflicted or extraneous to alleged dumping” and in section 7 at pages 6 and 7 under the heading “No material injury and no causation”; and

2    dated 25 November 2010 at page 3 under the heading “Failure to analyse effect of dumping on a country-by-country basis”.

42    On 23 September 2011 the CEO published another report, Report No 159C. This report includes a recommendation in the following terms:

The delegate recommends to the Minister that he decide to publish a dumping duty notice in respect of certain clear float glass exported to Australia from China, Indonesia and Thailand.

If the Minister accepts this recommendation, to give effect to the decision, the Minister must sign the relevant notices and schedules, under subsection 269TG(2) and section 8 of the Customs Tariff (Anti Dumping) Act 1975 (the Dumping Duty Act).

43    The history of the investigation is identified including the fact that the CEO had terminated the investigation in 2010 under s 269TDA(13), as well as the revocation of that termination decision by the TMRO. In section 8 of this report the CEO identified the general approach taken to the injury analysis including that as most external sales of CFG during the investigation period were of 3, 4, 5 and 6 mm CFG the price analysis had focussed on these specific thicknesses. This report contained additional analysis including the following findings of section 9.1:

9.1    Findings

Dumping has caused material injury to the Australian industry for the following reasons:

▪    CFG was exported to Australia from the countries under consideration during the investigation period at dumped prices with dumping margins of between 3.3% and 26.4%;

▪    the price pressure experienced by Viridian from dumped exports from the countries under consideration caused Viridian to lower its prices during the investigation period to maintain volume, which resulted in price depression and suppression;

▪    the Australian industry’s injury during the investigation period in the form of price depression and price suppression caused by dumped exports from the countries under consideration resulted in reduced profits and profitability;

▪    an analysis of customers that were common to both the Australian industry and imports during the investigation period showed that the Australian industry was able to achieve an average price premium of around 8% over the dumped imports. Customs and Border Protection is satisfied this premium could be maintained. Although the undumped export prices from the countries under consideration were still below the Australian industry’s selling prices during the investigation period, an increase in the export prices by at least the extent of the dumping would have enabled Viridian to raise its prices to some degree resulting in an improvement in Viridian’s revenue and profitability; and

▪    while other factors have contributed to the injury suffered by the Australian industry during the investigation period, the injury to the Australian industry that was caused by dumping of the exports from the countries under consideration is material.

44    In section 9.9.2 the CEO described the analysis in more detail in these terms:

9.9.2    Analysis

Customs and Border Protection has found that dumping caused injury to the Australian industry during the investigation period, but other factors contributed to that injury.

Customs and Border Protection notes a WTO Appellate Body ruling which stated that to ensure that other known factors are not attributed to dumped imports, ‘an assessment must involve separating and distinguishing the injurious effects of the other factors from the injurious effect of the dumped imports.’ However the Appellate Body emphasised that the particular methods and approaches by which WTO members choose to carry out this process are not prescribed by the Anti-Dumping Agreement.

Disentangling the effects that a range of factors have had on an industry is not an exact science. Nonetheless, Customs and Border Protection is of the view that the effects of other known factors need to be isolated from the dumped imports to ensure that injury caused by these other factors is not attributed to the dumped imports. It is important to bear in mind, however, that dumped imports need not be the sole or even the principal cause of injury. What must be established is that the injury that can be attributed to dumping is material.

In the resumed investigation, Customs and Border Protection has assessed the materiality of the injury caused by dumping in two ways. Customs and Border Protection calculated notional undumped export prices for comparison with Viridian’s prices, and also examined the effects of a notional price premium i.e. the additional margin a local supplier might expect to receive above the price of a similar imported product.

45    The report includes similar price analysis as set out in the statement of essential facts, however, the allowance for the price premium which Viridian as the local supplier could charge has been increased to 8%. The consequence is that, leaving aside the effect of the high value of the Australian dollar, Viridian’s prices compared to those of Thailand was assessed to be -7% for 3 mm CFG, -3% for 4 mm CFG, 0% for 5 mm CFG, and 2% for 6 mm CFG. In an earlier table, Table 12, the effect of the high value of the Australian dollar was calculated to be about 4%. The analysis continued in these terms:

After taking into account Viridian’s submission Customs and Border Protection is of the view that it is reasonable to conclude that although the undumped prices plus a premium were below Viridian’s selling prices during the investigation period, an increase in the export prices by at least the extent of the dumping would allow Viridian to increase its price to reduce the injury caused by price depression and suppression. Even if, as JELD-WEN claims in its submission to SEF159C, Viridian is the price setter in the market, this would support a view that Viridian would attempt to increase its price if the effects of dumping were removed.

Customs and Border Protection re-examined the effects of including a price premium on the materiality of the price related injury suffered by Viridian during the investigation period at the micro level i.e. at the specific customer level (confidential attachment 3 refers).

Customs and Border Protection found that the undercutting margin was significantly reduced for Viridian’s major customers following adjustments to the dumped export prices from countries under consideration. This analysis supports a finding that Viridian would be able to raise its prices at least to those customers, which represent around 60% of its external sales volume.

…

In response to SEF159C, Viridian claimed that even a 5% increase in revenue is substantial in a commodity based business. Viridian claimed that it a simplistic generalisation to say that the presence and adverse impacts of dumped imports is overridden because of demand falling in the market. Viridian referred to the impact a 5% increase in revenue would have on Viridian’s gross margin, which was substantially more than 5%. Customs and Border Protection considers this submission has merit and agrees that an assessment by reference to revenue loss only is insufficient. When the impact on gross margin is taken into account, even if some of the price depression and suppression is due to other factors the part due to dumping would be material.

46    The analysis concluded as follows:

The TMRO directed Customs and Border Protection to consider, in a qualitative way, whether any part of the injury to the Australian industry was caused by dumping given the other factors at play. If so, Customs and Border Protection should consider whether that part of the injury caused by dumping is material. The direction of the TMRO to make a qualitative assessment recognises the difficulty in apportioning injury to dumping when there are other contributors to injury.

The analysis of the market and prices during the investigation period shows that low priced imports impacted the Australian industry’s ability to maintain and/or increase prices. While it might be established that low priced imports have caused injury to the Australian industry, Customs and Border Protection must find that dumping was the cause of that injury.

…

Customs and Border Protection acknowledges that other factors have contributed to the injury suffered by the Australian industry during the investigation period. However, after considering the evidence and observations presented by interested parties in the original and resumed investigations Customs and Border Protection is satisfied on reflection that the injury to the Australian industry caused by dumping from the countries under consideration during the investigation period is of itself material.

47    On 17 October 2011 the Minister published a dumping duty notice under s 269TG(2) of the Customs Act. This notice recorded that the Minister had:

…considered, and accepted, the recommendations of Customs and Border Protection, the reasons for the recommendations, the material findings of fact on which the recommendations are based and the evidence relied on to support those findings in REP 159C. I am satisfied that the amount of the export price of like goods that have already been exported to Australia is less than the amount of the normal value of those goods, and the amount of the export price of like goods that may be exported to Australia in the future may be less than the normal value of the goods and because of that, material injury to the Australian industry producing like goods has been caused. Therefore under s.269TG(2) of the Act, I DECLARE that section 8 of the Customs Tariff (Anti-Dumping) Act 1975 applies to like goods that are exported to Australia after the date of publication of this notice.

This declaration applies in relation to all exporters of the goods and like goods from China (other than Xinyi Ultrathin (Donguan) Co., Ltd), Indonesia and Thailand to Australia.

48    Amongst others Guardian applied for a review of the decision of the Minister to the TMRO. Guardian’s complaint included that the CEO’s analysis had been carried out only on a cumulative basis contrary to s 269TDA(13) of the Customs Act and focussed solely on CFG in thicknesses of 3, 4, 5 and 6 mm. The TMRO affirmed the decision of the Minister insofar as relevant.

49    On 14 November 2011 Guardian filed its originating application in this court for judicial review.

50    On 5 March 2012 the Minister published a notice giving effect to the recommendation of the TMRO under s 269ZZL(2) of the Customs Act.

DUTY TO CONSIDER (ISSUE 1)

51    Subsections 269TDA(1), (3) and (13) specify that if the CEO is satisfied about certain circumstances the CEO must terminate an investigation in respect of an application for a dumping duty notice. The circumstances, in shorthand form, are that the CEO is satisfied that:

•    There has been no dumping (s 269TDA(1)(b)(i));

•    There has been or may be dumping but the dumping margin is less than 2% (s 269TDA(1)(b)(ii));

•    The total volume of the goods the subject of the application is negligible (s 269TDA(3)); or

•    There has been or may be dumping but the injury caused by that dumping is negligible (s 269TDA(13)).

52    The dumping margin for s 269TDA(1) must be worked out in accordance with s 269TACB. The volume of goods is taken to be negligible for s 269TDA(3) if the total volume of goods that have been or may be dumped is less than 3% of the total Australian import volume. Although subss 269TDA(1) and (3) involve percentage requirements, and subs 269TDA(13) does not, it is apparent from the statutory provisions that calculating the relevant percentages itself involves potentially complex questions of evaluation and assessment.

53    In carrying out an investigation in respect of an application for a dumping duty notice is the CEO subject to a duty to consider whether or not the CEO is satisfied about the relevant circumstances in s 269TDA? I consider that, if an occasion for consideration arises, the CEO is subject to such a duty. In the present case, the occasion for consideration did arise both in respect of the initial investigation before the CEO decided to terminate the investigation (thereby fulfilling the duty of consideration) but also thereafter in the renewed investigation following the decision of the TMRO setting aside the termination decision. The occasion arose because, each time, Guardian expressly submitted to the CEO, in response to the call for submissions, that the circumstances in s 269TDA(13) existed with the consequence that the CEO must terminate the investigation. Guardian’s submissions were made in good faith and accompanied by sufficient information to constitute, in each phase of the investigation, an occasion giving rise to the existence of a duty on the part of the CEO to consider whether or not the CEO was satisfied about the matter in s 269TDA(13) of the Customs Act.

54    I do not find the respondents’ submissions to the contrary persuasive. It is true that the statute does not expressly state that the CEO must, at some time or other, consider whether he or she is satisfied about any of the relevant matters in subss 269TDA(1), (3) and (13) when carrying out an investigation in respect of an application for a dumping duty notice. It is true also that the duty which I consider exists is ambulatory. At any time during the investigation an occasion may arise which calls for the CEO to consider whether he or she is satisfied that the relevant circumstances requiring termination of the investigation exist. It is further true that under subss 269TAE(2C)(c) and (d) the Minister must independently consider the dumping margin and dumping volume requirements of 2% and 3% as specified when working out whether the cumulative effect of exports has caused material injury to an Australian industry. I do not see any of these circumstances as undermining the existence of a duty on the part of the CEO, if the occasion arises, to consider whether the investigation must be terminated as set out in subss 269TDA(1), (3) or (13).

55    A number of reasons support this conclusion. First, the language used is mandatory. If the CEO reaches the required state of satisfaction the CEO must terminate the investigation. Second, if an investigation is terminated then, subject only to review by the TMRO and judicial review, the consequence is that the CEO will not submit a report to the Minister and the Minister will not be subject to any duty to decide whether or not to publish a dumping duty notice. These are important practical consequences from the point of view of the applicant for the notice, the exporter, the country of export and the Minister. Third, without the CEO being subject to a duty, when the occasion arises, to consider whether he or she is satisfied about the relevant circumstances, s 269TDA is a dead letter. The CEO would never have to turn his or her mind to the issues and the requirement that the investigation be terminated if the CEO reaches the relevant state of satisfaction may be circumvented.

56    By requiring the CEO to terminate an investigation if the required state of satisfaction is reached the legislature imposed a corresponding duty on the CEO to consider whether he or she was or was not so satisfied if, during the course of an investigation, an occasion for such consideration arises. While the occasion for consideration may arise more than once it is for the CEO to decide when it is convenient to consider the relevant matters. This may be early or late or more than once in the investigation. If one or more occasions for consideration have arisen during the course of the investigation, provided the CEO does consider the relevant matters before completing the investigation, the duty will have been discharged. It may also be the case that no occasion arises during the course of an investigation for such consideration. For example, all of the available material might point to dumping, substantially above the nominated percentages in terms of dumping margins and volumes, and on no view able to be characterised as causing only negligible injury to Australian industry. In such a case, there would be nothing to enliven the duty of consideration.

57    In the present case, the duty to consider termination was enlivened because of Guardian’s initial and further submissions. The duty was not exhausted by the CEO’s initial decision to terminate the investigation because, after the review by the TMRO and the setting aside of that termination decision, the CEO published a new statement of essential facts and Guardian made a further submission in response which fairly and squarely raised for consideration whether the CEO was bound to terminate the investigation because, on the whole of the material, the CEO had to be satisfied that the injury to Australian industry by reason of exports from Thailand was negligible.

WAS THE DUTY DISCHARGED (ISSUES 2 AND 3)?

58    It is clear from the terms of s 269TDA(13) that, in order to discharge the duty, the CEO must consider the goods that have been or may be exported from the particular country of export. The language of s 269TDA(13) is specific. If the occasion arises for the exercise of the duty (as it did here in respect of exports from Thailand) the CEO must consider the goods that have been or may be exported from “a particular country of export”. The CEO must consider whether there has been dumping of some or all of “those goods” (that is, the goods exported from the particular country of export). If there has been such dumping the CEO must consider whether the injury to an Australian industry caused by “that dumping” is negligible (that is, the dumping from the particular country of export). If satisfied that the injury caused by “that dumping” is negligible, the CEO must terminate the investigation.

59    The CEO cannot discharge the duty of consideration by considering only whether the injury caused by the total of all dumping from all countries of export is negligible. That is not to say that the CEO is prohibited from considering the cumulative impact of dumping in the course of an investigation. The Minister is able to consider the cumulative impact if the conditions of s 269TAE(2C) are satisfied and nothing in the statutory provisions has the effect of making cumulative impact an irrelevant consideration (that is, a consideration which the CEO must not take into account) for the CEO’s investigation. The point is that the statute imposes a particular duty on the CEO, if the occasion arises, to consider whether the CEO is satisfied about certain matters and, if satisfied, the CEO must terminate the investigation. For the purposes of s 269TDA(13) the matters are whether the injury to an Australian industry caused by “that dumping” is negligible (that is, the dumping from the particular country of export). Accordingly, the CEO cannot discharge the duty of consideration (if it has arisen) other than by considering the particular country of export unless (as occurred in the first instance in this case) the circumstances are such that in considering all countries of export the CEO, at the same time, is in fact also considering each particular country of export.

60    The qualification just expressed is best explained by reference to the facts of the present case. In December 2010 the CEO decided to terminate the investigation on the basis that the dumping from China, Indonesia and Thailand which had occurred had caused only negligible injury to Australian industry. Assume, for this purpose, that the CEO considered only the cumulative impact of the exports from all three countries and not the impact of the exports from any particular country. Despite this, I do not think it could be suggested that the CEO had failed to discharge the duty of consideration. The reason is that, on these facts, the effect of the parts cannot exceed the effect of the whole. If the total injury caused is negligible, it must follow that each and every part of the total also causes negligible injury. Therefore, if satisfied that the injury caused by the total exports from all countries of export is negligible, with the consequence that the investigation must be terminated (as in fact occurred in December 2010 in this case), the CEO discharged the duty of consideration. The converse, however, is not the case. If not satisfied that the injury caused by the total exports from all countries of export is negligible, it does not follow that the duty has been discharged. This is because the parts may well be different from the whole. The injury caused by the whole may not be negligible but the injury caused by a part (the exports from a particular country of export) may be negligible. In any such case, to discharge the duty, consideration must be given to the injury, if any, caused by the export of goods from the particular country of export.

61    As I have said, the duty exists and is capable of arising for so long as the investigation continues. In the present case, the TMRO set aside the termination decision and the investigation continued. Both before and after the termination decision Guardian submitted that the CEO had to terminate the investigation insofar as it related to Thailand because the injury caused by the export of goods from Thailand, on the CEO’s own analysis, was negligible. Accordingly, the occasion for the duty also arose in respect of the renewed investigation. The question is whether the CEO discharged the duty at any time in that context. In this regard, I accept that if the CEO had considered the injury from the particular country of export at any time in the investigation and concluded that the injury caused was not negligible, and circumstances had not materially changed, the duty would be discharged. This is because the questions whether the duty has arisen and has been discharged are questions of fact to be assessed on the whole of the evidence. If the duty has been discharged, and nothing materially changes, the renewal of an investigation would not itself automatically have the effect of recreating the duty and requiring yet further consideration by the CEO.

62    For this reason the whole course of the CEO’s investigation is relevant to the question whether the CEO discharged the duty. As noted, the discharge of the duty that occurred in December 2010 when the CEO terminated the investigation was effective because the CEO considered that the total of all exports caused only a negligible injury. However, once the CEO reached the contrary view, and in circumstances where as here Guardian continued to submit that s 269TDA(13) was enlivened, the duty required consideration of any injury caused by the exports from the particular country of export.

63    I am not persuaded that the references in the documents of the CEO to the requirements of s 269TDA(13) evidence the discharge of the duty in this case. The substance of the CEO’s documents discloses a consistent confusion between the functions of the CEO and the functions of the Minister. There is no doubt that the CEO was entitled in the CEO’s documents to undertake a cumulative impact assessment. One purpose of the CEO’s documents was to inform the Minister and the Minister could consider cumulative impacts if certain conditions were satisfied. But the CEO’s documents were also brought into existence for the CEO’s own purposes. One of the CEO’s purposes was to decide whether he or she was satisfied about any of the circumstances which would require termination of the investigation as set out in s 269TDA. In the case of s 269TDA(13), if the injury caused by the total of exports was considered by the CEO to be more than negligible, that purpose could not be achieved without the CEO considering the injury caused by the exports from the particular country of export. It is not only that there is no evidence of the CEO having done so apart from the identification of Guardian’s submissions and the terms of s 269TDA(13). It is also that, in dealing with Guardian’s submissions, the CEO’s documents focus exclusively on cumulative impact.

64    The confusion (which, it must be said, is not surprising given the complexity of the statutory scheme) is disclosed best in the December 2010 report. Despite dealing with Guardian’s submission that the investigation had to be terminated insofar as it related to Thailand because any injury caused by the export of those goods was negligible, the CEO’s consideration was confined to three matters. First, that the price undercutting from Thailand was “not immaterial”. Second, that the magnitude of dumping from Thailand was “not negligible”. Third, that it was reasonable to “consider the cumulative effect of dumped imports from China, Indonesia and Thailand”. The first two propositions would be relevant to the consideration of the injury, if any, caused by the dumping of goods from the particular country of export, being Thailand. The third proposition, however, is irrelevant at least in the context of s 269TDA(13), which is the very issue the CEO was purporting to address. The purpose of s 269TDA(13) is to force the CEO to consider, if the occasion arises, whether the injury caused by goods dumped from a particular country of export is negligible. If so satisfied the CEO must terminate the investigation in respect of that country. The fact that the CEO, when addressing the key question of the effect of the exports, referred only to cumulative effects, in my view, is telling. The analysis disclosed that when the CEO was purporting to address the very question at hand, the CEO instead considered only the cumulative effect of all exports from all three countries. And nothing that happened thereafter improved the situation.

65    In the face of the CEO’s own documents I am satisfied that the CEO did not consider the injury, if any, caused to the Australian industry by the dumping of CFG from Thailand as required by s 269TDA(13). The CEO appears to have conflated the matters the Minister is able to consider with the CEO’s own responsibilities, which included consideration of the matters in s 269TDA(13) in the terms required by that section.

66    For these reasons I am satisfied that the duty of consideration arose in this case in the renewed investigation but was not discharged at any time by the CEO before the completion of the investigation.

67    The next issue is the consequence of the CEO not having discharged that duty.

CONSEQUENCE OF BREACH OF DUTY (ISSUES 4 and 5)

68    Issue 4 involves the question of the legal consequence of the CEO’s breach of the duty associated with s 269TDA(13). Issue 5 concerns discretion.

69    Guardian’s first submission was that the reasoning required by the common law about the consequences of breach of statutory duty as explained in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) does not apply to remedies under the ADJR Act. This was said to follow from the language of ss 5(1)(b) and 16(1) of the ADJR Act (that is, the relevant review ground that “procedures that were required by law to be observed in connection with the making of the decision were not observed” and the remedy provision that the court “may, in its discretion, make all or any of the following orders”) and to be supported by the statement of Gummow J in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 (Muin) at [169] that the ADJR Act does not require the error of law or procedural failure to go to the jurisdiction of the decision-maker.

70    I do not read [169] of Muin as clear support for the proposition that the considerations identified in Project Blue Sky are immaterial to judicial review under the ADJR Act. In any event, if that is so, the same type of considerations would be relevant to the exercise of discretion under s 16(1) of the ADJR Act.

71    In Project Blue Sky at [91] the High Court explained that an “act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition”. At [91]-[93] the High Court identified factors relevant to discerning the legislative purpose. Reflecting those factors Guardian in the present case submitted that the CEO’s failure to discharge the duty associated with s 269TDA(13) of the Customs Act should be found to invalidate the CEO’s report to the Minister and all subsequent steps (including the dumping duty notice). This is because s 269TDA(13) is expressed in mandatory language. The section represents an essential preliminary step in the sense that if the investigation is terminated no report of the CEO may be submitted to the Minister and the Minister would not then be required to decide whether to publish a dumping duty notice. The section represents a critical gateway because, if the CEO is satisfied that the exports from a particular country of export cause only negligible injury, then the section requires termination of the investigation and protects the exporter and country of export from being caught up in a cumulative assessment which the Minister is empowered to consider. The section thus implements Australia’s international obligations. The section is a key component in a complex set of interrelated checks and balances Parliament has imposed to ensure compliance with international obligations. The section has a direct, immediate and substantial effect on the rights and interests of an exporter. The matters required to be considered, whilst evaluative, are not merely exhortatory. The section has a rule-like quality. There is no substantial inconvenience which would result from breach causing invalidity. Given the important function of s 269TDA(13) in a highly prescriptive scheme, the notion that breach does not have the legal consequence of invalidity of subsequent steps in the process is unattractive. This is particularly so given that the Minister is not prevented, at the Ministerial decision stage, from publishing a dumping duty notice relating to a particular country of export even if satisfied that the injury to an Australian industry caused by exports from that country is negligible. Instead, the Minister may rely on cumulative effects. A failure by the CEO to discharge the duty, accordingly, matters. Guardian also submitted that the statement in LG Electronics Inc v Minister for Justice & Customs [2005] FCAFC 214; (2005) 148 FCR 34 (LG Electronics) at [30] on which the Minister relied to support a contrary conclusion was mere obiter dicta and thus not binding and did not represent a considered and reasoned analysis of the kind required by Project Blue Sky.

72    At [30] in LG Electronics the Full Court said:

In our view, the Act does not disclose an intention that an inquiry that continues in breach of s 269TDA(1) is invalid (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390).

73    Contrary to the Minister’s position (relying on McBride v Monzie Pty Ltd [2007] FCA 1947; (2007) 164 FCR 559) I accept Guardian’s submission that LG Electronics at [30] is obiter dicta and not part of the ratio of the case. This is because, as the opening words of [30] disclose, the Full Court decided the case on another basis, namely, that the CEO was not in fact satisfied of the matters in s 269TDA(1) and had also not in fact decided to terminate the investigation. As the provision was not self-executing, the claim based on a form of deemed termination necessarily failed. At [30] the Full Court was expressing alternative reasons why, if necessary, the same conclusion could have been reached in a different way. Accordingly, the reasons at [30] are not an additional part of the ratio of the case.

74    That said, I am persuaded that a full analysis of the statutory scheme supports the Minister’s position that a failure by the CEO to discharge the duty associated with s 269TDA(13) of the Customs Act does not have the consequence of invalidating the subsequent steps taken under that Act. I consider that the careful scheme embodied by the legislation discloses a contrary purpose.

75    First, the mandatory language of s 269TDA(13) is relevant but not determinative.

76    Second, whilst not exhortatory, the subject-matter of the duty is highly evaluative. Whether the dumped exports of a particular country caused negligible injury to an Australian industry might be analysed in a multiplicity of ways leading to a multiplicity of conflicting results.

77    Third, it is not the case that an application for a dumping duty notice and investigation by the CEO is the only path to the publication of a dumping duty notice. Guardian submitted that the latter proposition was the practical effect of the legislation but I do not think this is so. The Minister may initiate an investigation (s 269TAG). The power of the Minister to publish a dumping duty notice is not pre-conditioned on the carrying out of an investigation (s 269TG) but where there has been an investigation and CEO recommendation, the Minister must decide whether or not to publish a dumping duty notice (s 269TLA). The fact that, in a review by the TMRO, the TMRO may have regard only to “relevant information” and “relevant information” pre-supposes the existence of a report by the CEO (s 269ZZK) reflects the fact that the usual course is an investigation but does not, in my view, confine the Minister’s power in s 269TG.

78    Fourth, and more importantly than the third point which I accept is equivocal, the investigation by the CEO is undoubtedly an important step along the way to the publication of a dumping duty notice, but it remains an interim step. After the CEO has completed the investigation and provided a recommendation, the Minister must still make a decision. Moreover, the decision the Minister must make is pre-conditioned on the Minister reaching a specific state of satisfaction and is discretionary. But the Minister’s power is not pre-conditioned on the CEO having complied with all of the CEO’s duties, either expressly or implicitly. In this sense, the compliance or otherwise by the CEO with the duty of consideration I have found is not an essential preliminary to the Minister’s power.

79    The Minister must be satisfied that there has been “material injury to an Australian industry” (s 269TG(2)). In this regard, I accept Guardian’s submission that “material injury” is not the same as “negligible” and that the Minister, unlike the function of the CEO under s 269TDA(13), is able to base any conclusion about materiality on cumulative effects if certain conditions are satisfied (s 269TAE(2C)). But the fact remains that the Minister must still make a decision and the decision is discretionary. Further, in deciding whether or not cumulative effects can be taken into account it is apparent that subss 269TAE(2C)(c) and (d) require the Minister to consider the same matters which, if the CEO had been satisfied about, necessarily would have caused the CEO to terminate the investigation. That is, the Minister must consider, to take into account the cumulative effect, the dumping margin being at least 2% and the volume of dumped goods being at least 3% of the relevant criteria. Yet, by analogy on Guardian’s case, if the CEO had been so satisfied then the CEO had a duty to terminate the investigation under subss 269TDA(1), (3) and (4) (which, as explained above, I accept) and any failure to terminate would invalidate all that followed. The presence of the same considerations at Ministerial level which should have caused the CEO to terminate an investigation at the earlier stage in the process, apparent from the terms of subss 269TAE(2C)(c) and (d) compared to subss 269TDA(1), (3) and (4), in my view, is a strong indicator against invalidity. This is because the legislation contemplates that the circumstances in subss 269TDA(1), (3) and (4) might exist and indeed might always have existed, with the consequence that the CEO should have terminated the investigation if the CEO had properly fulfilled his or her statutory functions in accordance with s 269TDA, yet the matter has still made its way to the Minister. Although, in this regard, there is no equivalent to s 269TDA(13) in respect of the Minister’s decision, as I have said, the Minister’s decision is discretionary and the Minister can only consider cumulative impact in certain circumstances.

80    Fifth, the Minister’s decision under s 269TG(2) to publish a dumping duty notice is itself reviewable by the TMRO under s 269ZZA. Although the review by the TMRO is not a full merits review because the information the TMRO may consider is limited (s 269ZZK(4)) the review right is yet another safeguard in the statutory scheme. In the present case, of course, Guardian exercised its review right, but the TMRO did not accept Guardian’s submissions.

81    Sixth, although a person in Guardian’s position is precluded from applying for another review of a dumping duty notice within 12 months of publication of the notice, Guardian was (and remains) able to apply for another review after the expiry of the 12 month period as specified in s 269ZA(2). In addition, irrespective of the 12 month period, the Minister may on his or her own initiative review any dumping duty notice at any time (s 269ZA(3)).

82    While s 269TDA(13) is a safeguard (as are subss 269TDA(1) and (3)) these considerations indicate that it is not a purpose of the legislation that a failure by the CEO to discharge the duty when the occasion for its consideration has arisen is to invalidate everything that follows. There are so many steps and safeguards following the completion of the CEO’s investigation that discerning any such intention is impossible. Indeed, although Guardian submitted that no inconvenience resulted other than to Guardian by reason of the CEO’s failure, in the face of the remaining steps (Ministerial discretionary decision, potential TMRO review, potential Ministerial review, and potential review application by Guardian), it is apparent that significant inconvenience would result from setting aside as invalid the CEO’s report and everything that followed so that the CEO could fulfil the duty which remains undischarged.

83    To the extent it was submitted, I also do not accept that the fact the Minister and the TMRO relied on the CEO’s report as the foundation for their own conclusions means that their decisions were infected by the CEO’s failure to consider the requirements of s 269TDA(13). It was the CEO alone who was subject to the duty under s 269TDA(13). This is the basis for Guardian’s argument that the CEO’s failure matters. The failure does matter but does not, for the reasons given, lead to invalidity. Because the Minister and the TMRO were not subject to any duty associated with s 269TDA(13) the fact that they relied on the CEO’s report also does not have any consequence otherwise for the validity of their decisions.

84    I recognise that this conclusion leaves Guardian without a remedy in respect of an undischarged statutory duty. However, this is always the consequence of an analysis of the kind Project Blue Sky requires which results in the conclusion that it is not a purpose of the statute that breach cause invalidity.

85    For these reasons I consider that the failure by the CEO in this case to consider the matters in s 269TDA(13) as required by that section does not have the consequence of invalidating anything that followed. I consider this conclusion applies equally to the application for review under the ADJR Act. However, if I am incorrect in this regard, the same considerations are strong discretionary factors against the grant of any relief to Guardian.

86    The conclusions above make any discussion about discretion hypothetical. To the extent that the Minister relied on the notion that Guardian should be denied relief because it had delayed taking proceedings until the end of the process, a number of difficulties arise. I consider it likely that had Guardian commenced proceedings at an earlier time it would have been confronted by an argument that its application was premature as the Minister had not yet made a decision one way or another. In this sense, Guardian is right that it can hardly be accused of delay. The problem for Guardian is that the numerous steps remaining in the statutory process after the making of a recommendation by the CEO, as I have found, indicate that invalidity is not the intended consequence of any failure by the CEO to consider the matters in s 269TDA(13). Further, those numerous steps mean that Guardian had multiple opportunities to persuade the relevant decision-makers as to the merits of its position, irrespective of the CEO’s failure to terminate. Nothing prevented Guardian from making a submission directly to the Minister. Guardian did apply for review by the TMRO. The statutory scheme as a whole, rather than any delay by Guardian, weighs heavily against any exercise of discretion in Guardian’s favour.

MANIFEST UNREASONABLENESS (IssueS 6 AND 7)

87    Given the conclusions above, any manifest unreasonableness by the CEO in failing to terminate the investigation cannot have the effect of invalidating any subsequent steps. The issue is thus moot.

88    I also find it difficult to characterise what was in truth a failure by the CEO to consider what the CEO was required to consider by reason of s 269TDA(13) in the circumstances of this case as a manifestly unreasonable failure not to terminate the investigation. The CEO did not terminate the investigation because the CEO did not reach the required state of satisfaction as set out in s 269TDA(13). The CEO did not reach the required state of satisfaction because the CEO did not turn his or her mind to the matters which s 269TDA(13) required.

89    To the extent it is necessary to deal with this issue I do not consider that the CEO’s own analysis made the CEO’s failure to terminate the investigation manifestly unreasonable. I recognise that the CEO’s analysis shows that Viridian’s prices were the same as or less than the prices of Guardian if allowances were made for the effect of the increase in the value of the Australian dollar and an assumed price premium which Viridian should be able to impose as the local supplier. The relevant point, however, is that these exercises were one part only of the CEO’s attempt to disentangle the effects of dumping from other potential causes of the injury that Viridian had suffered. The CEO noted that the exercise was not “an exact science” and that various methods could be used to make the assessment. It is not apparent to me that the exercises the CEO undertook necessarily would have caused a reasonable person to conclude that the exports from Thailand caused only negligible injury to the Australian industry. Putting it another way, it is not apparent to me that the CEO, even confronted with the results of the analysis undertaken, if acting reasonably, necessarily would have reached the required state of satisfaction specified in s 269TDA(13). The CEO might rationally have done so. Equally, however, given the nature of the task and the exercises the CEO undertook, the CEO also might rationally not have done so.

90    For these reasons, I do not accept that the CEO’s failure to terminate offended the rules of reason. The failure to terminate resulted from a failure to consider the required matters. This was a legal error by the CEO but not one which had the effect of invalidating anything that followed.

91    Further, even if I had been satisfied that the failure to terminate was manifestly unreasonable I would not have concluded that this had the consequence of invalidating any subsequent step on the basis of the same considerations in terms of Project Blue Sky and discretion discussed above.

3-6 MM CFG (Issue 8)

92    Guardian’s arguments about issue 8 are elusive. Guardian accepted that in discharging the duty to consider “the goods” as required by ss 269TG(2) and 269TE, the CEO was entitled to use a proxy. Yet according to Guardian the fact that the CEO, when assessing the materiality of the injury to Australian industry for the purpose of s 269TG(2)(b), focussed on 3-6mm CFG and not all of the goods (3-12mm CFG) involved legal error. According to Guardian the CEO asked the wrong question by not considering the effect of the dumping of the goods and instead considering the question of the effect of dumping of some of the goods.

93    I do not accept this submission. I do not consider that the CEO considered the effect of the dumping of some of the goods, being 3-6mm CFG. In a part of the analysis the CEO used 3-6mm CFG as a proxy for the goods as whole. The CEO used this proxy because of the information available (shipments are recorded in square metres, shipment codes group 5 and 6mm CFG together, 8 and 10mm together and everything 12mm and over together) and the perceived utility of types of analysis (as most external sales were of 3-6mm CFG, the CEO broke the code down for 5 and 6mm CFG, and focussed on the 3-6mm CFG range). The CEO did so for the self-evident purpose of using the 3-6mm range (where most sales occurred) as a proxy for the range of 3-12mm as a whole. Once this is recognised it is apparent that Guardian’s complaint is nothing more than a concern that the CEO did not fully explain every detail in the chain of reasoning which, it must be inferred, led the CEO to decide that 3-6mm CFG was a meaningful proxy for the goods as a whole.

94    I do not consider there to be any substance in this complaint. It must be inferred that the CEO was satisfied that 3-6mm CFG was a suitable proxy for the goods as a whole. The fact that the CEO might have explained the reasoning process more fully is immaterial. It is not mere speculation to recognise that the CEO was using 3-6mm as a proxy. It is impossible to imagine that the CEO had any other purpose when the CEO’s documents are read as a whole. Nor is it material that the CEO’s analysis does not permit a third party, such as Guardian, to test the robustness of the proxy. Nothing in the evidence suggests that the decision to use 3-6mm as a proxy was irrational or unreasonable. The CEO has provided a prima facie rational explanation for so doing. At best it is speculation on Guardian’s part that the proxy might not be as robust as the CEO thought, which is not a basis for attributing any legal error to the CEO and certainly not one that would have the effect of vitiating anything done thereafter.

CONCLUSIONS

95    For the reasons set out above Guardian has not established the invalidity of any of the conduct impugned in this proceeding. The further amended originating application should be dismissed with costs.

Associate:

Dated:    8 August 2013