Federal Court of Australia

Wilson Transformer Company Pty Ltd v Anti-dumping Review Panel (No 2) [2021] FCA 591

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s Application for relief under s 39B of the Judiciary Act 1903 (Cth) be dismissed.

2.    Subject to Order 3 the Applicant pay the First Respondents costs as agreed, or in default of agreement, as may be taxed.

3.    A party seeking a different order to Order 2 must within 7 days of the publication of these reasons file and serve written submissions limited to 3 pages with its application. Any responsive written submissions limited to 3 pages must be filed and served within 7 days thereafter and any reply submissions limited to 1 page must be filed and served within 7 days of the filing of any responsive submissions.

4.    Unless otherwise ordered all issues arising in relation to costs be determined on the papers.

5.    Order 3 of the orders made 19 April 2021 be varied so as to permit disclosure of the matters referred to in [37] of these reasons.

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

REASONS FOR JUDGMENT

KERR J:

1    This an application for judicial review of a determination of the Anti-Dumping Review Panel (the Panel) to affirm decisions of the Commissioner of the Anti-Dumping Commission (the Commissioner) to terminate anti-dumping investigations in so far as they related to:

(a)    ABB Chongqing Transformer Co Ltd and Siemens Transformer (Jinan) Co., Ltd; and

(b)    Siemens Transformers (Wuhan) Co Ltd.

2    Although three grounds of review are advanced by the Respondent pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (Administrative Decisions Act) it is uncontentious that that the disposition of grounds 2 and 3 are linked to (although in the case of ground 3 the Applicant submits, is not disposed of by) the fate of ground 1.

3    On 20 October 2020 I ordered that pursuant to s 12(1) of the Administrative Decisions Act and/or s 23 of the Federal Court of Australia Act 1976 (Cth), ABB Power Grids Australia Pty Ltd (ACN 010 087 608), ABB Chongqing Transformer Co., Ltd and Siemens Energy Pty Ltd (ABN 69 636 537 409) and its related entities (Siemens Transformer (Jinan) Co. Ltd, and Siemens Transformer (Wuhan) Co. Ltd) be joined as respondents to this proceeding. I reserved all questions of costs in respect of those applications to the conclusion of the hearing of the substantive application. Omitting nuance those parties have confined their role to the making of submissions in support of the lawfulness of the Panel’s decision.

4    The three grounds of review pressed by the Applicant are as follows:

1.     Each of the Decisions involved an error of law and/or was not authorized by the Customs Act (AD(JR) Act, s 5(1)(d) and (f)); further or alternatively, the Decisions were affected by jurisdictional error.

Particulars

a.     In making the Decisions, the Respondent adopted and applied an erroneous construction of s 269TAA(1)(b) of the Customs Act, by construing para (b) as being concerned only with the “appearance of variation from the price that would have been agreed had the sale been negotiated at arms length”.

2.     The procedures that were required by law to be observed in connection with the making of the Decisions were not observed (AD(JR) Act, s 5(1)(b)), the making of each of the Decisions was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made (by the Respondent failing to take a relevant consideration into account in the exercise of the power) (AD(JR) Act, s 5(1)(e), and (2)(b)), the Decisions involved an error of law and/or were otherwise contrary to law (AD(JR) Act, s 5(1)(f) and (j)); further or alternatively, the Decisions were affected by jurisdictional error.

Particulars

a.    In making the Decisions, the Respondent failed to have regard to information that was before the Commissioner when the Commissioner was making the decisions the subject of the Respondent’s reviews and was, on a proper construction of s 269TAA(1)(b) of the Customs Act, relevant to the Decisions: namely, the report by letter from Ms Shannon Smit of Transfer Pricing Solutions dated 20 January 2020 (the TPS Report).

b.    Alternatively, the Respondent failed to conclude that the TPS Report “provide[d] a basis for concluding that the prices ‘appeared’ to be influenced by the relationships between exporters and importers in this case”, by reason of the Respondent’s erroneous construction of s 269TAA(1)(b) of the Customs Act.

3.     A breach of the rules of natural justice occurred in connection with the making of each of the Decisions, and/or the procedures that were required by law to be observed in connection with the making of the Decisions were not observed (AD(JR) Act, s 5(1)(a) and (b)); further or alternatively, the Decisions were affected by jurisdictional error.

Particulars

a.    After initiating the reviews on 18 March 2020, the Respondent held a conference with representatives of the Anti-Dumping Commission pursuant to s 269ZZRA for the purpose of obtaining further information in relation to the applications for review (the Conference).

b.    Representatives of the Anti-Dumping Commission provided the Respondent with further information at, and after, the Conference, to which the Respondent had regard in making the Decisions (the Further Information). The Further Information related to the information that was before the Commissioner when the Commissioner made the termination decisions the subject of the Respondent’s reviews.

c.     The Respondent did not: (i) inform the Applicant that the Conference would be held; (ii) invite the Applicant to attend the Conference; (iii) inform the Applicant that the Further Information had been provided; or (iv) invite the Applicant to comment on the Further Information, before the Decisions were made.

5    It is convenient now to set out the background to this proceeding. In doing so I have drawn substantially on the written submissions of the Applicant. I do not take the matters I set out below to be contentious.

Background and history of this proceeding

6    Part XVB of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) (the Customs Act) deals with “the taking of anti-dumping measures in respect of goods whose importation into Australia involves a dumping or countervailable subsidisation of those goods that injures, or threatens to injure, Australian industry”. Anti-dumping measures include the publication of a dumping duty notice, which creates a liability under the Customs Act to pay a special duty on the importation of the goods subject to the notice.

7    An application for the Minister to publish an anti-dumping notice may be lodged with the Commissioner under s 269TB of the Customs Act. The Commissioner must consider the notice and may decide to initiate an investigation under s 269TC of the Customs Act. An investigation must be terminated in certain circumstances set out in s 269TDA, including where the Commissioner is satisfied that there has been no dumping by the exporter (s 269TDA(1)(b)(i)), or where the Commissioner is satisfied that there has been dumping but the dumping margin is below 2% (s 269TDA(1)(b)(ii)).

8    To ascertain whether dumping has occurred requires a comparison between the “export price” of goods exported to Australia and their “normal value”. Section 269TAB(1) provides for three ways in which the export price may be determined. The first two methods apply where the goods have been exported to Australia otherwise than by the importer and have been purchased by the importer from the exporter (whether before or after exportation) and:

(a)    the purchase of the goods by the importer was an arms length transaction, in which case the export price is the price paid or payable for the goods by the importer, other than any part of that price that represents a charge in respect of the transport of the goods after exportation or in respect of any other matter arising after exportation (s 269TAB(1)(a)); or

(b)    the purchase of the goods by the importer was not an arms length transaction and the goods are subsequently sold by the importer, in the condition in which they were imported, to a person who is not an associate of the importer, in which case the export price is the price at which the goods were so sold by the importer to that person less the prescribed deductions (s 269TAB(1)(b)).

The third method for calculating the export price under s 269TAB(1) applies in any other case, and is the price that the Minister determines having regard to all the circumstances of the exportation: s 269TAB(1)(c).

9    In February 2019 the Applicant lodged with the Commissioner an application under s 269TB(1) of the Customs Act requesting that the Minister publish a dumping duty notice in respect of power transformers exported from the Peoples Republic of China.

10    On 18 March 2019, the Commissioner initiated Investigation No 507 into that alleged dumping.

11    The Commissioner received submissions from the Applicant in response to the “statement of essential facts” the Commissioner had published. The Applicant’s respective submissions were dated 10 November 2019, 26 November 2019, 12 December 2019 and 19 December 2019. The Applicant’s submission dated 26 November 2019 argued that the Commissioner had “failed to apply the correct (or any) statutory test for whether exporter/ importer transactions should be treated as arms length”. The submission included contentions that the Commissioner had not properly characterised the commercial relationships between related parties of multinational importers/exporters; that the multinational power transformer suppliers had “a strong case to answer concerning the arms length nature of their intra-group transactions”; and that, if the correct test had been applied, “prices between related party companies of these multinationals would appear to be influenced by that relationship”. The Applicant’s submissions dated 12 December 2019 and 19 December 2019 contained further submissions in relation to the proper approach to the operation of s 269TAA(1) and the assessment of arms length transactions.

12    Later, but some time before the Commissioner gave notice of his decision, the Applicant provided the Commissioner with the document it is convenient to refer to as the TPS Report. The author of the TPS Report, Ms Shannon Smit, was identified in that report as being the founding director of Transfer Pricing Solutions (TPS) and as having consulted to multinational companies on transfer pricing, taxation and accounting for a period of over twenty-five years.

13    In the TPS Report Ms Smit expresses the opinion that “the price between related parties is invariably influenced by the commercial, structural and other relationships within the entities”; that she could “confidently say that [she has] never seen a transaction that has not been influenced by the relationships within the entities”; and that “the prices between related entities of the multinational suppliers of power transformers listed in appendix one would be influenced by their commercial, structural and other relationships within the entities”. In Appendix 1 Scope of Services Ms Smit notes, in respect of the opinions she expresses, that the question she had been asked, and had reported on, was “not concerned with whether the prices between related entities of the multinational PT suppliers are or are not at a level that would pertain in an arms length transaction”.

14    On 31 January 2020 the Commissioner gave notice of his decisions to terminate the investigations. He published reasons for coming to those decisions in Termination Report No 507. His conclusion was that the relevant sales had been arms length transactions.

15    It is uncontentious that although the TPS Report was submitted to the Commissioner by the Applicant in sufficient time as would have allowed consideration of it, for reasons which are not apparent, he did not have regard to it in reaching his decisions.

16    Pursuant to Subdiv C, Div 9 of Part XVB of the Customs Act a decision of the Commissioner is reviewable by the Panel. In that regard the Panel exercises merits review but in the instance of a review of a decision by the Commissioner to terminate an investigation under certain sub-sections of s 269TDA (a termination decision), s 269ZZT(4) requires that, subject to ss 269ZZRA(2) and 269ZZRB(2), “the Review Panel must have regard only to information that was before the Commissioner when the Commissioner made the reviewable decision”.

17    On 28 February 2020, the Applicant applied to the Panel for review of the termination decisions made by the Commissioner. Its review application contained a detailed description of the Applicant’s grounds of review, in summary, that:

(a)    the Commissioner failed to apply s 269TAA(1)(b) of the Customs Act correctly and, in particular, wrongly substituted the criteria in that provision with a test for arms length transactions in fact, disregarding the evidentiary threshold;

(b)    given the relationships between related subsidiaries of multinational suppliers of the power transformers, the Commissioner was on notice that it should properly inquire as to whether s 269TAA(1)(b) was satisfied, but had failed to do so;

(c)    the TPS Report established that s 269TAA(1)(b) was satisfied and the Commissioner should have had regard to that evidence; and

(d)    the Commissioner failed to properly assess injury suffered by Wilson due to dumped goods from China in the form of lost commercial opportunities.

18    The Applicant’s application to the Panel explicitly criticised the Commissioner’s approach to the construction of s 269TAA(1)(b). It referred, among other things, to the TPS Report. On the basis of Ms Smit’s reasoning it submitted that “prices between related entities of the multinational PT suppliers would invariably be influenced by that relationship”.

19    It is uncontentious that the Panel proceeded on the basis that although the Commissioner had not had regard to the TPS Report, for the purposes of s 269ZZT(4) it had been, at least constructively, before the Commissioner. I am satisfied that the Panel’s approach in that regard was sound. In any event it is not in issue that the Panel proceeded on the basis that the TPS Report was properly before it in the Applicant’s review.

20    On 8 May 2020, after it had formally commenced its review, the Panel held a conference with representatives of the Commission pursuant to s 269ZZRA of the Customs Act. A transcript of those discussions is in evidence but is subject to confidentiality orders. For present purposes it is sufficient to note that it is uncontentious that the Applicant was neither advised of that conference nor was it later given any opportunity to respond to what might have been communicated to the Panel. It is however uncontentious that ss 269ZZRA and 269ZZRB respectively deal with the holding of conferences for the purposes of obtaining further information, and seeking further information from the Commissioner. In each case, the Panel may only have regard to such further information “to the extent that it relates to the information that was before the Commissioner when the Commissioner made the reviewable decision”.

21    On 18 May 2020, in so far as is relevant to these judicial review proceedings, the Panel decided to affirm the Commissioner’s decisions. It did so on the basis that the Commissioner had been correct to conclude the relevant sales had been arms length transactions. The Panel published its reasons: Decision No 122 and 123.

Ground 1

22    The central issue raised by way of ground 1 is whether, in reaching its conclusion that the purchases or sales of the relevant goods in respect of which the respondent had made an anti-dumping application were not required to be treated as non-arms length transactions, the Panel proceeded on the basis of a legally incorrect construction of s 269TAA(1)(b) of the Customs Act.

23    Mr Borsky QC who appeared with Mr Clolek for the Applicant described the provisions of Part XVB of the Customs Act 1901—Special Provisions relating to dumping duties which extend over 201 pages of the statute book (ss 296SM to 296ZZY) as Byzantine. Mr Borsky’s reference to those provisions as Byzantine might be thought to unfairly cast a slur on the reputation of an extraordinary vanished empire. Although I am charged with being mindful that the task of construction of any statutory language requires regard to be had to its text read as part of the Act as a whole, fortunately the central contention of the Applicant concerns the proper construction of only one section of Part XVB’s complex web of provisions; specifically, the true meaning of the language in s 269TAA(1)(b).

24    Section 269TAA in which that subsection appears is as follows:

269TAA Arms length transactions

(1) For the purposes of this Part, a purchase or sale of goods shall not be treated as an arms length transaction if:

(a) there is any consideration payable for or in respect of the goods other than their price; or

(b) the price appears to be influenced by a commercial or other relationship between the buyer, or an associate of the buyer, and the seller, or an associate of the seller; or

(c) in the opinion of the Minister the buyer, or an associate of the buyer, will, subsequent to the purchase or sale, directly or indirectly, be reimbursed, be compensated or otherwise receive a benefit for, or in respect of, the whole or any part of the price.

(1A) For the purposes of paragraph (1)(c), the Minister must not hold the opinion referred to in that paragraph because of a reimbursement in respect of the purchase or sale if the Minister is of the opinion that the purchase or sale will remain an arms length transaction in spite of the payment of that reimbursement, having regard to any or all of the following matters:

(a) any agreement, or established trading practices, in relation to the seller and the buyer, in respect of the reimbursement;

(b) the period for which such an agreement or practice has been in force;

(c) whether or not the amount of the reimbursement is quantifiable at the time of the purchase or sale.

(2) Without limiting the generality of subsection (1), where:

(a) goods are exported to Australia otherwise than by the importer and are purchased by the importer from the exporter (whether before or after exportation) for a particular price; and

(b) the Minister is satisfied that the importer, whether directly or through an associate or associates, sells those goods in Australia (whether in the condition in which they were imported or otherwise) at a loss;

the Minister may, for the purposes of paragraph (1)(c), treat the sale of those goods at a loss as indicating that the importer or an associate of the importer will, directly or indirectly, be reimbursed, be compensated or otherwise receive a benefit for, or in respect of, the whole or a part of the price.

(3) In determining, for the purposes of subsection (2), whether goods are sold by an importer at a loss, the Minister shall have regard to:

(a) the amount of the price paid or to be paid for the goods by the importer; and

(b) such other amounts as the Minister determines to be costs necessarily incurred in the importation and sale of the goods; and

(c) the likelihood that the amounts referred to in paragraphs (a) and (b) will be able to be recovered within a reasonable time; and

(d) such other matters as the Minister considers relevant.

(4) For the purposes of this Part, 2 persons shall be deemed to be associates of each other if, and only if:

(a) both being natural persons:

(i) they are members of the same family; or

(ii) one of them is an officer or director of a body corporate controlled, directly or indirectly, by the other;

(b) both being bodies corporate:

(i) both of them are controlled, directly or indirectly, by a third person (whether or not a body corporate); or

(ii) both of them together control, directly or indirectly, a third body corporate; or

(iii) the same person (whether or not a body corporate) is in a position to cast, or control the casting of, 5% or more of the maximum number of votes that might be cast at a general meeting of each of them; or

(c) one of them, being a body corporate, is, directly or indirectly, controlled by the other (whether or not a body corporate); or

(d) one of them, being a natural person, is an employee, officer or director of the other (whether or not a body corporate); or

(e) they are members of the same partnership.

25    It is uncontentious that the relevant transformers, the sales of which were the subject of the investigations that had been terminated by the Commissioner, were not fungible commodities: rather they were large individual items of manufacture. Each was constructed only after tenders defining their specifications had been called and accepted. It is not suggested that that circumstance will change in the future.

26    The Commissioner, whose decisions the Panel was charged with reviewing, had determined that the relevant sales of those transformers had been arms length transactions. He had terminated the investigations on that premise.

27    Mr Borsky advances no submission that, but for the requirements of s 269TAA(1)(b), the Panel could be concluded to have erred in affirming the Commissioner’s decision. The alleged error in the Panel’s understanding of and application of that subsection is thus critical to the disposition of ground 1 in this proceeding.

28    Mr Borsky submits that the Panel’s error is revealed at [47] of its reasons. That paragraph is as follows:

47.    In my opinion, the influence with which s 269TAA(1) is concerned is influence as to price. It is concerned with the appearance of variation from the price that would have been agreed had the sale been negotiated at arms length. Any other effect does not provide a reason why the price agreed between the parties should not be adopted as the export price under s 269TAA(1) or result in the transaction not being used for the determination of the normal value under s 269TAC(1).

29    Mr Borsky submits that the Panel’s reasoning that s 269TAA(1)(b) is concerned only with an “appearance of variation from the price that would have been agreed had the sale been negotiated at arms length” involves an error of law. The error revealed in that paragraph was a statement of the Panel’s understanding of the legal test. It had then applied that erroneous understanding in its further reasoning. That was so in respect of the Panel’s finding at [55] that the conclusion earlier reached by the Commissioner that the impugned export sales had been arms length transactions was correct. Necessarily it was also so when the Panel had affirmed the Commissioner’s decision on that basis. The Panel’s erroneous construction of the statute had infected both of those conclusions with legal error.

30    But for that error, Mr Borsky submits, the Panel would have given consideration to the correct question posed by s 269TAA(1)(b); that is whether the price of those sales appeared to have been influenced by the relationship between the parties. In that regard whatever might have been the price had those sales been negotiated at arms length, that, as a matter of statutory construction, was an irrelevant consideration. If commercial or other relationships appeared to have influenced the price of a transaction, s 269TAA(1)(b) required the Panel to proceed on the basis that the sales were not at arms length. By taking into account that there was nothing to suggest the prices so set had differed from that which would have been established if they had been at arms length, the Panel had taken into account an irrelevant consideration. It had thus fallen into jurisdictional error.

31    In the course of oral argument the Court enquired of Mr Borsky whether it necessarily followed that the error the Applicant submitted the Panel had fallen into at [47] of its reasons had infected the balance of its reasoning and its ultimate conclusion. It sought Mr Borsky’s response to whether, when read as a whole and without an eye to the establishment of error, the asserted flawed reasoning of the Panel might not have been confined to its discussion of the relevance of the TPS Report as the Panel discussed at [46]–[48].

32    Mr Borsky rejected being taken by surprise by the Court’s enquiry and did not seek the opportunity to file any supplemental submissions (Transcript p 32, lines 25 and following). Nonetheless, in light of the limited opportunity provided to the Applicant to respond, the Court later made orders in chambers to facilitate the filing of brief supplemental written submissions.

33    To give proper attention to those submissions and so that the impact of the error said to have been exposed at [47] can be determined, it is appropriate first to set out the Panel’s consideration of the case that had been advanced by the Applicant that the Commissioner had been wrong to have treated the related party sales as arms length transactions. The Panel’s reasoning was as follows;

35.    The applicant advanced three grounds why the Commissioner was wrong to treat the related party sales as arms length transactions. They are outlined at paragraph 23.

36.    The applicant’s position is founded on the fact that the exporters from China and the importers into Australia were, in the cases identified above, related companies. The applicant said that this gave the ‘appearance’ that the price was influenced by the relationship between them or within the group. The TPS Report dealt with the capacity for profit shifting within large multinational groups and the ability of ‘head office’ to influence price. It was said to provide evidence supporting the appearance of influence. The applicant contended that, despite this evidence, the Commissioner did not consider whether the transactions were arms length transactions. The applicant also argued that the Commissioner was concerned with whether the transactions were in fact influenced by the relationship of the parties, rather than whether they appeared to be influenced by the relationship as required by s 269TAA(1)(b).

37.    There is some force to some of the applicant’s arguments.

38.    The Commissioner dealt with s 269TAA(1) at Part 6.3 of TER 507. The Report said:

The Commission considers that section 269TAA does not exhaustively set out the criteria for determining whether a transaction is, or is not, ‘arms length’. Even if none of the circumstances in section 269TAA exist, the Commission may still examine the relevant information in order to determine whether there has been genuine bargain between buyer and seller.

In practical terms, the mere fact that parties are legally associated is not taken to automatically mean that they cannot be engaged in ‘arms length’ transactions. In assessing whether transactions between related parties comprise ‘arms length’ transactions, the Commission looks beyond the legal or functional relationship. It will determine whether the parties deal with each other as parties at ‘arms length’ would, and whether the outcomes are the result of real bargaining.

Based on these considerations, whether a transaction is an ‘arms length’ transaction is a matter of fact to be determined having regard to all the circumstances of the sale in question…

39.     The Commissioner’s discretion under s 269TAA(1)(b) is more limited than this passage contemplates. Section 269TAA provides criteria which, if established, lead to the conclusion that a transaction was not an arms length transaction. If the criterion set out in s 269TAA(1)(b) is satisfied, the transaction is not an arms length transaction. The Commissioner has no residual discretion to treat such a transaction as an arms length transaction.

40.     The applicant pointed out that s 269TAA(1) uses the word ‘appears’. That word was included by an amendment to s 269TAA(1) in 2013. The applicant referred to the Explanatory Memorandum for the Customs Amendment (Anti-dumping Measures) Bill 2013 (Explanatory Memorandum). The passage from the Explanatory Memorandum dealing with s 269TAA(1) reads:

19    Sub section 269TAA(1)(c), operating with sub-section 269TAA(2), allows ‘sales at a loss’ to not be treated as arms length transactions during an investigation or a review.

20     Subsection 269TAA(1)(b) specifies that where ‘the price is influenced’ by a relationship between the buyer and seller, it shall not be treated as an arms length transaction. This section can be used to address a range of circumstances where a relationship between the parties affects the price paid or payable for goods.

21     Article 2.3 of the Anti Dumping Agreement sets out procedures for establishing an export price where there is no export price or the export price appears unreliable to the authorities concerned. Specifically Article 2.3 provides that “where it appears” an export price is unreliable because of an association or compensatory arrangement between the parties, an export price may be established by specified alternative means.

22     By including the phrase ‘the price appears to be’ in paragraph 269TAA(1)(b) the Customs Act is better aligned with the Anti-Dumping Agreement, and recognises that the evidence that authorities may have available in an investigative process may not be entirely conclusive as to the effect of a relationship on a price, and instead allows a reasoned and objective approach to such an issue based on what the available information suggests.

41.     The applicant’s argument is supported by passages from TER 507 which suggest that the Commissioner was required to be positively satisfied that the transaction was influenced by the relationship between the parties. For example, in the case of Siemens, TER 507 said that the Commissioner was satisfied that the export sales between Siemens Jinan and its Australian purchaser ‘were the result of arms length transactions’ ‘having regard for the findings contained in the combined Siemens Jinan verification report’. At page 13 of the Exporter Verification Report for Siemens Australia the Commissioner said:

In respect of Siemens Jinan’s Australian sales of the goods during the period, the verification team found no evidence that:

•    there was any consideration payable for, or in respect of, the goods other than its price; or

•    the price was influenced by a commercial or other relationship between the buyer, or an associate of the buyer, and the seller, or an associate of the seller; or

•    the buyer, or an associate of the buyer, was directly or indirectly reimbursed, compensated or otherwise receive a benefit for, or in respect of, the whole or any part of the price.

The verification team therefore considers that all export sales to Australia made by Siemens Jinan during the period were arms length transactions.

42.    The approach in respect of the other exporters with related importers was the same.

43.    Section 269TAA(1)(b) does not require the Commissioner to be satisfied that, as a matter of fact, the export price was influenced by the relationship between the exporter and importer. A transaction may appear to be influenced by the relationship between the parties even if there is not enough evidence to satisfy the Commissioner, on the balance of probabilities, that the transaction was in fact influenced by the relationship. The reference to ‘appears’ in s 269TAA(1) imports a lower standard than would be necessary if the Commissioner was required to be satisfied that, in fact, price was not influenced by the parties’ relationship. The Commissioner must treat a transaction as falling within s 269TAA(1)(b) if it merely ‘appears’ that the price is influenced by the relationship. Consequently, a statement that the Commissioner was not satisfied that the price was (in fact) influenced by the relationship between the parties would not address the statutory criterion.

44.    However, the Commissioner must still act on all the information available to him. If there is some information which gives the appearance of influence and other evidence which establishes that, in fact, the prices were not influenced by the relationship between the parties, the Commissioner is entitled, and indeed obliged, to act on all the information available to him. This is consistent with paragraph 22 of the Explanatory Memorandum. The Minister or Commissioner is to reach a conclusion based on what (all) the available information suggests. Conversely, if there is no evidence from which it ‘appears’ that the price was influenced by the relationship, the Commissioner may treat the transaction as an arms length transaction.

45.    In my opinion, the Commissioner does not fall into error by conducting the investigation with a view to ascertaining whether, in fact, the transaction was influenced by the relationship between the parties. It may be that the inquiries will not enable the Commissioner to reach a positive conclusion about the fact of influence. If, at the end of that inquiry, there was evidence which fell short of that standard, but gave the appearance of influence, the transaction would not be an arms length transaction.

46.    In the present case, the applicant contends that there is information available to the Commissioner which gives the appearance that the sales between the related exporters and importers were ‘influenced by a commercial or other relationship between the buyer, or an associate of the buyer, and the seller, or an associate of the seller’. It pointed to the TPS Report. Ms Smits, the author, has extensive experience working as a consultant in the field of transfer pricing. She was asked the question:

Would prices between relevant related entities (ie importers and exporters) of the following multinational suppliers of power transformers … be influenced by their commercial, structural or other relationship?

Ms Smit opined:

…the price between related parties is invariably influenced by the commercial, structural and other relationships between the entities.

However, Ms Smit also said that the question she was asked:

… is not concerned with whether prices between related entities of the multinational PT suppliers are or are not at a level that would pertain in an arm’s length transaction.

47.    In my opinion, the influence with which s 269TAA(1) is concerned is influence as to price. It is concerned with the appearance of variation from the price that would have been agreed had the sale been negotiated at arms length. Any other effect does not provide a reason why the price agreed between the parties should not be adopted as the export price under s 269TAA(1) or result in the transaction not being used for the determination of the normal value under s 269TAC(1).

48.    I am not, therefore, persuaded, that Ms Smit’s report provides a basis for concluding that the prices ‘appeared’ to be influenced by the relationships between exporters and importers in this case, within s 269TAA(1)(b).

49.    I accept that relationships between the exporters and importers provides an opportunity for the price to be influenced and that this might well lead the Commissioner to scrutinise the transactions more carefully than transactions between unrelated parties. It must be borne in mind, however, that the opportunity and the capacity to influence the price, is not the same thing as actually influencing the price. It does not follow that the appearance of influence, such as that which might exist between related exporters and importers, creates the appearance that the influence has been exercised.

50.    I also note that s 269TAA(1) does not enable the Commissioner to reframe the nature of the commercial relationship between exporter and importer. In the present case, for example, importers did not purchase the goods on their own account, in the hope that customers would approach them for a power transformer. Power transformers are bespoke products. This background would inform the commercial relationship between exporters and importers who were not members of the same corporate group.

51.    The Commissioner referred to the practice identified in the Dumping and Subsidy Manual to identify whether related party transactions are arms length. The practice is to compare the related party transaction to other similar transactions between parties who are not relation. The Commissioner considered that this approach was not possible in this case because the exporters did not sell goods to unrelated parties.

52.    The applicant claimed that, in light of the TPS Report and the difficulties with the method of inquiry outlined in the Manual, the Commissioner failed to make inquiries into whether prices were influenced by the commercial and structural relationships between the related parties. This is not correct. The Commissioner did make inquiries. Documents were obtained from the related parties and the issue raised in verification visits. Information gathered during those inquires is identified in the worksheets prepared in respect of the exporters and importers. The worksheets contained confidential information and were not disclosed to the applicant.

53.    The information provided about the dealings between exporter and importer showed that the details of the arrangements between them varied. In broad terms, xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxx xxxxxxxx xxxx xxxxxxx xxxxxxxxxxx xxxxxxx xxxxxx xxxxxxxxx xxxxxxx xxxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxxxxxxxx xxxxxxxxxxx xxxxx xxx xxxxxxxxxxx (A description of the relationship between exporters and importers - confidential to the importers and the exporters). The sales between exporter and importer were formalised. On occasions, the documentation attributed liability for defects and overruns. One set of documentation even allowed for determination of disputes by an independent arbitrator.

54.    Although the conclusions in the various verification reports were expressed in terms of a lack of evidence to persuade the Commissioner that the export prices were in fact influenced by the relationship between the exporter and importer, the evidence also supports the conclusion that the prices did not appear to be influenced by the relationship of the parties.

55.    For these reasons, I consider that the conclusion reached by the Commissioner in relation to whether the export sales were arms length transactions within s 269TAA(1) was correct. The applicant did not raise any other grounds in respect of the decisions under s 269TDA(1) (Citations omitted).

The Applicant’s further submissions

34    The Applicant does not dispute that the propositions established in Collector of Customs v Pressure Tankers and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (Pozzolanic) as to the restraint appropriate to be adopted by a court charged with judicial review of an administrative decision, unless capable of being distinguished, apply to this Court’s task.

35    However in that regard the Applicant relies upon what a subsequent Full Court (Lee, Carr and Finkelstein JJ) had said in W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 (W375/01A) at [16]:

16.     … provided the Court acts with due caution, it may look closely at the decision to see whether there is legal error. In reviewing the Tribunal’s reasons the Court is entitled to take into account the fact that the Tribunal is constituted by trained personnel, it has obvious expertise in the performance of its functions, it has legal advice available to it, and its members are familiar with the relevant legal principles … There is no reason to suppose that the Tribunal does not mean what it says, and says what it means.

(emphasis in submission)

36    The Applicant, in its supplementary written submissions, submits that with that guidance in mind what the Review Panel said at [47] should be read according to its terms:

3.     …And, in terms, in that paragraph the Review Panel expressed a view about the proper construction of s 269TAA(1)(b) generally, not just as it concerns the TPS Report.

4.     Moreover, a statement of reasons must be read in light of the content of the statutory obligation pursuant to which it was prepared. Sections 269ZZQA(5)(c) and 269ZZRC(4)(b) contemplate that the Review Panel will conduct its review “in relation to” the grounds of an applicant’s application for review of a termination decision, by which grounds the applicant contends that the reviewable decision is not the correct or preferable decision. The Review Panel must decide the review either by affirming or revoking the decision (s 269ZZT(1)). Pursuant to s 269ZZT(6), the Review Panel must “publish its decision” on its website.

5.     Wilson advanced three grounds of review in respect of the termination decisions the subject of this proceeding (TB:448). Those grounds are summarised at AS [16]. The Review Panel considered that each of the grounds “go to the proposition that the export sales of goods between related companies were not arms length transactions within s 269TAA(1)(b)” and that it was “convenient to deal with them together” (at [25]). The Review Panel proceeded to do so (at [35]-[55]). As such, the Review Panel considered Wilson’s three grounds of review to be necessarily connected. That feature of the Review Panel’s reasoning tells strongly against any interpretation of the reasons that might seek hermetically to isolate the Review Panel’s error of construction at [47] from the balance of its reasoning concerning the proposition that it identified as underlying each of Wilson’s three grounds of review: namely, whether the export sales of goods between the relevant related companies “were not arms length transactions within s 269TAA(1)(b)”.

37    In respect of the intersection of the Applicant’s submissions with the actual circumstances as were before the Panel, the Applicant submits:

6.    The transcript of the conference held by the Review Panel on 8 May 2020 with representatives of the Commission also indicates that the construction of s 269TAA(1)(b) advanced at [47] of the Review Panel’s reasons was connected to, and indeed underpinned, the balance of its reasoning.

7.    Mr Ellis (constituting the Review Panel) identified that, on one view, the fact that a parent company in company group may dictate the profit margin to be achieved as between a related exporter and importer may be said to “affect the export price”…. Mr McGovern’s response was to the effect that, in the Commission’s view, in such circumstances, if the profit margin that the group seeks to achieve “is the same for an unrelated or a related party, I guess that’s our belief that there’s not an influence there if the profit that they’re seeking is the same” (emphasis added)… Mr Ellis then said that he could see where the Commission staff were “coming from” and could “see why it’s reasonable. I can understand the justification for” the Commission’s approach…

8.    The Commission staff thereby informed the Review Panel that, in applying s 269TAA(1)(b), the Commission staff did not simply apply the literal text of the provision; rather, they applied the provision, subject to a gloss, the justification for which Mr Ellis considered “reasonable”. None of that discussion concerned the TPS Report. Yet, at [47] of the Review Panel’s reasons, the Review Panel endorsed a construction of s 269TAA(1)(b) echoing that which the Commission’s staff had described in the 8 May conference. As such, the Review Panel’s evaluation of all of the evidence that might have borne on whether s 269TAA(1)(b) was satisfied was affected by the error of construction that is apparent at [47] of its reasons.

9.    Finally, and in any event, the Review Panel’s error of construction affected at least its disposition of Wilson’s third ground of review, by which Wilson had contended that the Commissioner ought to have concluded, on the basis of the TPS Report, that s 269TAA(1)(b) was satisfied. On the proper construction of s 269TAA(1)(b), and contrary to [48] of the Review Panel’s reasons, the TPS Report did “provide a basis for concluding that the prices ‘appeared’ to be influenced” by the relationships between the relevant exporters and importers, in the sense of being (at least) probative of that fact. For that reason, the error of construction that the Review Panel made at [47] infected its ultimate conclusion, which was, relevantly, to affirm the termination decisions under review.

(citations omitted)

38    The First Respondent, the Panel, understandably and properly makes no submissions as to how its reasons should be read. However, on behalf of the Second and Third Respondent Mr Tran advanced supplementary submissions including:

6.     The verification report said that there was no evidence that “the price was influenced by a commercial or other relationship between the buyer, or an associate of the buyer, and the seller, or an associate of the seller” [TB 161, 163]. There was the bare fact of the importer and exporter being related companies. And that is it. The TPS Report went no further than seeking to explain why that bare fact was important; but it is plain that the applicant has jettisoned that fact as a sufficient basis to engage the provision.

7.     It is for this reason that the second and third respondents submitted in oral address that this is just a case where the applicant failed on the facts.

8.     Even if there is error in paragraph 47, and even assuming paragraph 47 can be said to have been of wider significance, still there is no error justifying the grant of relief.

Consideration of the further submissions

39    The Court rejects the submissions the Applicant advances that, assuming [47] of the Panel’s reasons is affected by error, that that erroneous reasoning infected the critical conclusions of the Panel upon which its decision was based.

40    In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (Wu Shan Liang) Brennan CJ, Toohey, McHugh and Gummow JJ stated at [30]–[31]:

30.     …in [Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280] a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language ... nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued:

“The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.

31.     These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

41    The Full Court’s remarks in W375/01A that the Applicant relies upon to distinguish those observations were made in the context of a refugee case in which the appellant had advanced a claim that he would be at risk of being killed if returned to the country he had fled. In the same passage cited (in part) by the Applicant, the Full Court in W375/01A at [16] observed that in matters involving questions of life and death “…it is the duty of the Federal Court to subject the Tribunal’s decision to ‘more rigorous examination’ than in other cases, and for obvious reasons.”

42    The Applicant’s submission that cases such as Pozzolanic and Wu Shan Liang can be distinguished because their Honours’ analysis in W375/01A “transposes readily” to the instance of the Panel is unpersuasive.

43    Gummow A-CJ and Kiefel J’s statement in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [35] that the reasons of an administrative decision maker are “not to be scrutinised in an over-zealous fashion” (in dissent but not relevantly in that respect) is but one example of the High Court’s continued endorsement of the principles stated in Wu Shan Liang.

44    When regard is had to the specific context in which [47] is relevant, I am unpersuaded that a fair reading of the Panel’s reasons as a whole supports an inference that the error the Applicant alleges infects the Panel’s other reasoning so as to be material to the Panel’s ultimate conclusions.

45    What the Panel was dealing with in [46]–[48] was the relevance or otherwise of the TPS Report. In that report its author, Ms Smit, had opined that the prices between the related entities of suppliers of power transformers necessarily would be influenced by those entities’ commercial, structural or other relationships. She was of the opinion that in all international related party transactions “the price between related parties is invariably influenced by the commercial, structural and other relationships within the entities”. Whether that opinion, stated in the abstract as it was, was something the Panel was either required to or entitled to accept and act upon was a discrete question—which at [48] was answered by the Panel in the negative.

46    In this proceeding the correctness of the Panel’s answer to that discrete question, as such, is not contentious. In oral argument Mr Borsky explicitly acknowledged, contrary to the position the Applicant had taken before the Panel, that the mere existence of commercial or other relationships between related parties involved in international trade and exporting to Australia of itself engaged the operation of s 269TAA(1)(b).

47    However, as noted, that had been the Applicant’s position before the Panel.

48    The Panel having found as recorded at [48] that there was no proper basis for the engagement of s 269TAA(1)(b) by reason of what was contained in the TPS Report, I am unpersuaded that a fair reading of reasons as a whole requires the conclusion that the Panel’s decision turned on the rationale it gave at [47] for rejecting Ms Smit’s analysis.

49    Rather, on a fair reading of the Panel’s reasons as a whole without an eye minutely attuned to the perception of error, no more is apparent in the Panel’s other reasoning than that, in the facts of the case before it, the Panel concluded that nothing in the actual facts of the commercial and other relationships between the buyers (or any associate of the buyers) and the sellers or (any associate of the sellers) of transformers as had been examined by the Commissioner (and on review by the Panel) as giving any “appearance” of those relationships having influenced the price of the relevant goods.

50    The Applicant advances no submission that the Panel stated the law it was required to apply inaccurately in [39]–[45] of its reasons. That is unsurprising. What the Panel states in those paragraphs regarding its understanding of the law governing its task is entirely consistent with what the Applicant submits for.

51    Neither is the alleged error perceptible in the Panel’s application of that law to the facts at [49]–[54] of its reasons.

52    Indeed I draw a contrary inference. When one turns to [49] of the Panel’s reasons the Panel correctly observes that the bare opportunity to influence price does not mean that opportunity was or appears to have been taken. That observation, read fairly, reflects an understanding of the law the Panel had earlier correctly set out at [39]–[45]. The Panel then refers to the materials that had been before the Commissioner as he had gathered in the course of his inquiry and had relied upon to cause it to be terminated. That material included documents that had been obtained from the related parties and information the Commissioner had gathered in the course of verification visits. That information had been complied into worksheets: see at [52] of the Panel’s reasons.

53    The Panel’s reasons at [53] then give regard to what it had been informed of regarding how the prices for transformers had in fact been set. There is nothing to suggest that the Panel in doing so did not address the legally correct question it had earlier identified viz whether the relevant relationships should have appeared to the Commissioner (and on review to the Panel) to have influenced those prices.

54    I reject Mr Borsky’s submission that the Panel’s reasons are to be construed having regard to Mr Ellis (constituting the Review Panel) having identified in discussion with the Commission’s staff that that, on one view, the fact that a parent company in a company group may dictate the profit margin to be achieved as between a related exporter and importer may be said to “affect the export price” (CTB: 4, 5).

55    As that submission accepts the response to the Panel’s observation was to the effect that, in the Commission’s view, if the profit margin sought to be achieved “is the same for an unrelated or a related party”, it was the Commission’s belief “that there’s not an influence… if the profit that they’re seeking is the same” (CTB:4). Mr Ellis had responded that he could see where the Commission staff were “coming from” and could “see why it’s reasonable. I can understand the justification for” that approach (CTB:5). To the extent that the Panel’s responsive observation is submitted to be reflected in the Panel’s final reasons there is nothing in it to suggest that the Panel was doing other than to apply its then provisional thinking to whether or not a relevant appearance of influence had been manifested. It does not suggest that the Panel’s thinking was confined to the erroneous construction of s 269TAA(1)(b) as the Applicant now submits for.

56    The Panel found at [64] that the evidence in the various verification reports of the actual dealing between the related parties which had been the subject of consideration by the Commissioner “supports the conclusion that the prices did not appear to be influenced by the relationship of [those] parties.” In my view no error is thereby revealed.

57    The Panel’s decision that there was no appearance of influence is not open to be set aside on the basis of what it states in one paragraph in which, understood in context, it was giving discrete attention only to, and explaining why it had rejected as relevant to its task, the position in the TPS Report which the Applicant had commissioned. There is nothing at all in any of its reasoning as to suggest it was applying an inappropriately narrow lens of analysis.

58    The Court is satisfied that, the Panel’s reasons read fairly, as Mr Tran submits, reflects no more than it having concluded that there was no sound basis on the materials before it for it to differ from the outcome that had earlier been reached by the Commissioner on the same facts. The merits were for the Panel and the Court has no authority to review the merits on the basis of what the Court has concluded to be a chimera.

59    In prudence I should add that I reject the proposition advanced by the Applicant at [9] of its supplementary written submissions. In advancing that submission the Applicant assumes the existence of an error of construction had infected the balance of the Panel’s reasons. The logic is circular. If when read as a whole and without an eye to the establishment of error, the posited flawed reasoning of the Panel is properly to be understood as confined to its discussion of the relevance of the TPS report as the Panel discussed at [46]–[48] that error could not have been, in the facts applying, material to the outcome.

If I am wrong.

60    If I am wrong in that conclusion, I would in any event accept the submission advanced in writing on behalf of the Second and Third Respondents by Mr Tran that s 269TAA(1)(b) does not require the Panel to treat a want of any apparent disconformity between the price for the which the goods were actually sold and that which would be otherwise have been the price arrived at in an arms length transaction as a legally irrelevant consideration.

61    As the overview of Part XVB of the Customs Act provided in s 269SM reveals, the provisions of the Customs Act that provide for anti-dumping duties are designed to provide a mechanism to redress material injuries alleged to have been suffered by Australian affected parties in respect of the sale of “goods whose importation into Australia involves a dumping or countervailable subsidisation of those goods…”.

62    The Applicant in its principal written submissions at [3] appears to accepts that it is inherent that such injury will be inflicted only when imported goods are being sold at artificially low prices: see also s 269TG(1). In any event I take it to be the vice those provisions are directed at providing a remedy for.

63    So much also appears to the Court be necessarily implicit in the written submissions of the Applicant in which at [45] the following is advanced:

45.     As the Review Panel recognised, s 269TAA(1) operates as an integer in a series of provisions that are directed at establishing the export price of goods relative to the normal value of those goods. It is an enactment, into domestic law, of Art 2.3 of the Anti-Dumping Agreement, which indicates that s 269TAA(1) is concerned with issues as to the reliability of the price of goods. Section 269TAA(1) is directed at addressing, for the purpose of a decision-maker establishing whether dumping has occurred, the unreliability of an export price because of association or a compensatory arrangement between the exporter and the importer or a third party.

64    The complexity of the Byzantine provisions of Part XVB which provide for a maze of circumstances in which alleged concealed dumping and any home country subsidisation of goods can be identified and quantified, ought not to obscure that the scheme is not directed to instances in which the prices of imported products have neither been subsidised nor sold at an unreliably low export level.

65    Although in oral argument Mr Borsky disowned the proposition that the mere existence of commercial relationships between related parties in a multinational trade transaction necessarily engages the operation of s 269TAA(1)(b) his submissions were ultimately to the same effect. Thus the Applicant submits even if a price could be proven to be no different to or even higher than that which would been arrived at in an arms length transaction, if the mechanism setting that price was by way of a policy or guideline that had been applied between related entities, per se, that circumstance necessarily will give rise to there being a relevant “appearance” of the price having been influenced by the relationship of those parties within the meaning of s 269TAA(1)(b).

66    I reject that submission. If the existence of a relationship per se is insufficient, there must be some benchmark against which an appearance of a price being affected by such relationships can be assessed. If in the facts the Panel is satisfied that a price is commercially reliable and no less than what would be achieved in what would in ordinary parlance be referred to as an arms length transaction there seems no reason for that consideration to be excluded from the Panel’s deliberations.

67    The expression “arms length transaction” is not a defined term for the purposes of Part XVB of the Customs Act. I reject, in the absence of any foundation in the statute to the contrary, and none is asserted, how it might be contended that the export price of goods relative to the normal price of those goods might be said to be unreliable because of an association or compensatory arrangement between the exporter and the importer or a third party in circumstances where there is nothing before a decision maker to suggest that the price was other than would be at least that as would be reached in an arms length transaction. It is to be recalled that save as to the contended for operation of s 296TAA(1)(b) there is no challenge to the Commissioner’s finding (or the Panel’s on review) that the sales fell within the undefined meaning of an arms length transaction.

68    To paraphrase Freud, sometimes a cigar is just a cigar: equally sometimes a price will be just a price.

69    In assessing whether there is an appearance of a relationship between related parties having influenced the relevant prices at which transformers had been sold I am unpersuaded that as a matter of law, based on the construction of the provision contended for, the Panel must ignore whether or not a price that was actually arrived at by those associated parties is the same as, or less than or greater, than would have been arrived at by an arms-length transaction.

70    A construction of s 269TAA(1)(b) as would require such considerations to be excluded as legally irrelevant in assessing whether there is an appearance of influence in the statutory context in which that provision is located should be rejected.

71    The Applicant’s written submissions accept that s 269TAA(1) is to be construed having regard to its purpose of enacting into domestic law Article 2.3 of the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement). As is relevant the section is thus directed at addressing, for the purpose of a decision maker establishing whether dumping has occurred, whether there might appear to be “unreliability of an export price because of association or a compensatory arrangement between the exporter and the importer or a third party.”

72    Against such a background the reference in s 269TAA(1)(b) to an appearance of a relationship having affecting a price is to be understood as directing a decision maker’s attention to, inter-alia, the possibility that an otherwise seemingly robust price may have been artificially set or arrived at through a contrivance at a level lower than would arise in a normal commercial (arms length) transaction between unrelated parties.

73    If on the facts as found by the Panel, that possibility has been rejected, nothing in the scheme of the Customs Act requires s 269TAA(1)(b) to be construed such that an inquiry where such facts have been found to exist must nonetheless continue.

74    The contention advanced by the Applicant requires an implausible construction of s 269TAA(1)(b). The Applicant’s own submissions are consistent with the provisions of Part XVB of the Customs Act having been enacted to facilitate investigations into dumping and to facilitate countervailing duties being available to be imposed if dumping is established.

75    In Commissioner for Railways (NSW) v Agalionos [1955] HCA 27; (1955) 92 CLR 390, Dixon CJ observed (at 397) “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning that the logic with which it is constructed.” In Project Blue Sky Inc v Australian Broadcasting Authority [1988] HCA 28; (1988) 194 CLR 355, the Court cited Dixon J’s observation with approval and itself observed at [69] that the “primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.”

76    A construction of s 269TAA(1)(b) as would require an anti-dumping investigation to continue notwithstanding that the Commissioner (and the Panel on review) had been satisfied that the related parties had priced their products for sale in Australia in a genuinely commercial basis would require pointless investigations to continue into a matrix of facts the complete antithesis of what is inherently the vice of dumping. There is nothing in the text of the provision itself to suggest that such an implausible construction is required.

77    In evaluating whether some commercial or other arrangement “appears” to have influenced the price of imported goods it was therefore not impermissible for the Panel to have reasoned as it did. No subsidisation was found—and the Applicant does not suggest error in that regard. The evidence before the Commissioner (which the Panel was informed of during its meeting with the Commission’s staff) was to the effect that the export price(s) that had been achieved as between the related parties as had been investigated by the Commissioner was the same for an unrelated or a related party.

78    I reject, assuming the Panel did assess whether or not there was an appearance of influence by taking into account as a comparator the price at which an arms length transaction would have been made by unrelated parties that an error in construing is established.

New information disclosed does not require a different outcome

79    A curiosity about this proceeding is that some passages of the Panel’s reasons at paragraph 53 had remained redacted until late in the hearing—at which time those parts which hitherto had been redacted were disclosed in Court. Those passages are identified in the Panel’s un-redacted reasons as having contained information about the way in which the relevant prices had been set.

80    Mr Borsky accepts that the Applicant had not previously sought disclosure of those redacted parts.

81    That perhaps explains the absence of any ground of review in these proceedings asserting error of law based on those passages.

82    No application to amend the Applicant’s grounds of review was made. Such an application may or may not have been resisted on the basis that the Applicant had made a forensic decision to not press for access to those passages and to confine its application for review to the grounds submitted for. All that is speculative.

83    However, that no application was made to include a ground asserting legal error on that basis is sufficient reason to decline to decide this review in favour of the Applicant on a ground other than that advanced.

84    Putting that to one side, the gravamen of what was advanced in argument by Mr Borsky is that what is revealed in those parts of the Panel’s reasons that had only then become available to the Applicant is that it confirms that the multinational parties had policies and guidelines in place which had influenced the price at which their transformers had been sold into Australia. That, the Applicant submits, is enough to show an appearance of influence. The Panel’s conclusion to the contrary must therefore have involved an error of law.

85    I have rejected that submission for the reasons stated above.

86    The substance of what the Panel does in those previously redacted passages is to make findings about how the prices for the relevant transformers had in fact been arrived at.

87    I reject that the mere existence of policies or guidelines insofar as they had required the relevant prices to be set on a commercial basis and with profit margins aligned as in an arms length transaction required the Commissioner and, on review the Panel, to conclude, for the purposes of s 269TAA(1)(b), that the relevant price(s) “appears to be influenced” by the parties’ relationships. If needs be said I also reject the Applicant’s reply submissions to the effect that what the Panel recorded in its reasons at [52] makes good the proposition that the Panel had erred in not then finding that the TPS Report had somehow become relevant.

88    Given the actual policies and procedures of the related parties there was no reason for the Panel to have reasoned that the relationship between the buyer, seller or any other related party warranted concern as to the unreliability of the export price.

89    Having regard to the Court’s analysis at [69]-[78] the facts the Panel summarised did not require it to treat those transactions as appearing to have been relevantly “influenced” by those parties commercial or other relationships. In any event there is no ground advanced that the Panel’s conclusion on the merits was legally unreasonable.

90    For completeness the Court should indicate that it rejects that the dicta of Lehane J in Nordland v Anti-Dumping Authority (1999) 93 FCR 454, as relied upon by the Applicant, requires it to conclude to a different effect. In that regard the Court accepts the First Respondent’s submission set out below:

Lehane J in Nordland was dealing with a case that concerned s 269TAA(1)(c). His Honour’s passing reference to the operation of sub- paragraph (b) did not refer to any argument on the point (nor is there any indication that there was any such argument directed to this issue), and his Honour did not address the points raised in the present proceedings. In particular, Lehane J’s observations do not pay sufficient regard to the manner in which “influence” is determined for the purposes of paragraph (1)(b). Lehane J should not be taken to have suggested that s 269TAA(1) must be applied so as to exclude transactions which appear to be reliable, and thus to exceed its purpose.

91    For the above reasons Ground 1 must be dismissed.

Ground 2

92    The Applicant concedes that the outcome of Ground 2 necessarily is contingent on the success or failure of Ground 1. Ground 1 having been dismissed, I would dismiss Ground 2.

Ground 3

93    As was noted by the plurality in SDCV v Director-General of Security [2021] FCAFC 51 at [143] it is settled law that “Parliament can validly legislate to exclude or modify the rules of procedural fairness”: Gypsy Jokers Motor Cycle Club Inc v Commissioner of Police [2008] HCA 4; 234 CLR 532 at [181]-[183] per Crennan J; applied in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at [152].

94    It may be accepted that what is required as a matter of procedural fairness is not fixed in stone or the same in every instance. In the particular context of the Panel’s deliberations, whatever duty it had was subject to any express or necessarily implied statutory limitations. The First Respondent submits that the Panel was under no obligation to inform the Applicant that a conference would be held or to notify it of any further information it received and provide the Applicant with the opportunity to comment on it. It advances that submission on the following premises:

44.     First, while the nature of the Panel’s review involves a fresh consideration of the merits of a termination decision, the review is limited by the specific procedures in the Customs Act.

(a)     The Panel’s predecessor was the Trade Measures Review Officer. The Customs Act required that in reviewing a termination decision “the Review Officer must have regard only to information that was before the CEO when the CEO made the reviewable decision”. The Minister in his second reading speech noted that this limitation was to “ensure the outcome of dumping inquiries is decided as quickly as possible, providing certainty in the marketplace”. The restriction operated such that the Review Officer (and subsequently the Panel) was not permitted to receive any new data in the context of their review.

(b)     The restriction imposed by s 269ZZT(4) of the Customs Act was relaxed with the introduction (in 2015) of ss 269ZZRA(2) and s 269ZZRB(2). These provisions specifically allow the Panel to seek, obtain and consider “further information” in the circumstances permitted. However, the Customs Act draws a distinction between the information the Panel may receive and consider before and after it begins to conduct the review.

(c)     After an application is made, if the Panel is not satisfied of certain matters in relation to the application, the Panel may request that the applicant give it “further information” in relation to those matters. The Panel may choose to obtain “further information in relation to the application …” by holding a conference with the applicant. In fact, if the Panel decides to hold a conference “at any time after receiving an application for a review and before beginning to conduct the review”, the Panel must invite the applicant to attend the conference. According to the relevant explanatory memorandum, the “intent is to ensure that if the Review Panel has any queries on an application, it can resolve them before accepting or rejecting the application and conducting the review”.

(d)     Before the Panel begins to conduct a review of a termination decision, it must publish a notice on the Panel’s website indicating that it proposes to conduct a review. Once the Panel begins its review, the statutory scheme does not permit an applicant to provide further information to the Panel unless it is in the context of a conference held under s 269ZZRA, and only then to the extent that it relates to information that was before the Commissioner. After it has begun to conduct the review, the Panel is permitted to hold a conference with such persons as it considers appropriate “for the purpose of obtaining further information in relation to the … review”. In contrast to s 269ZZRA(3)(a), there is no express requirement to invite the applicant to attend a conference held with persons or bodies other than the applicant after the Panel has begun to conduct the review. This supports a negative inference that the Panel is not obliged to invite the applicant to a conference after it begins its review. Any such obligation would be inconsistent with the confined nature of the review which the Act contemplates.

(footnotes omitted)

95    I reject that the Court is entitled to draw the negative inference the First Respondent contends for. A statute is not to be construed to remove a decision maker’s obligation to comply with procedural fairness unless that intention is clear by express or necessary intendment. That the Panel had an express statutory obligation to allow persons in the position of the Applicant to attend and participate in any conference it might hold prior to the commencement of its formal review (as required by s 269ZZRA(3)(a)) is textually agnostic as to whether the requirements of procedural fairness might be engaged at a later point of time in the application of the scheme. I am not satisfied that the other elements of the scheme require the reading advanced on behalf of the Panel.

96    I reject the First Respondent’s submissions that the circumstance that there is a usual time limit of 60 days within which the Panel will ordinarily be required to make its decision is an indication of a clear statutory intendment to exclude procedural fairness if a circumstance arises after the commencement of its formal review in which that duty becomes relevant. Assuming it would be unfair of the Panel not to allow an Australian manufacturer the opportunity to be heard in respect of any new information the Panel obtained after the commencement of its formal review the statute itself provides for a mechanism that permits in “special circumstances” the Panel to seek an extension of time from the Minister.

97    I am unpersuaded that as a matter of statutory construction, the provisions of s 269ZZRA must be understood as having entirely excluded the First Respondent from any duty to accord the Applicant procedural fairness in respect of a circumstance arising after it began its formal review.

98    However what procedural fairness requires in the specifics of a particular instance depends upon the specific circumstance applying, the statute governing the proceeding, and the context in which that circumstance arises.

99    In those regards the First Respondent correctly submits that any duty the Panel was subject to had to be accommodated to the context in which both the Commissioner and the Panel were subject to statutorily imposed obligations obliging them not to disclose the Applicant’s competitors’ confidential or commercially sensitive information to it:

46.     …In the case of a conference under s 269ZZRA, a summary of the further information must be included in the public record maintained by the Panel under s 269ZZX. The information provided to the Panel may include information that is claimed to be confidential or to be information the disclosure of which might adversely affect that person’s business or commercial interest. Any such confidential or commercially sensitive information must not be contained in the public record; rather, the public record will include a non-confidential summary of the information. In practice, the possibility that a conference under s 269ZZRA might involve the discussion of information that is confidential or commercially sensitive to the person attending the conference means that most such conferences will be held ex parte. In particular, the likelihood that a conference with representatives from the Commission will involve the discussion of information that is confidential or commercially sensitive to persons other than the applicant supports the inference that there is no obligation on the Panel to invite an applicant to such a conference.

(footnotes omitted)

100    In large measure I accept that submission—but to the extent it suggests that in those circumstances the duty is entirely displaced it goes too far.

101    In the particular facts applying there appears to the Court to have been nothing in the obligations of confidence binding on the Panel as would have prevented it from advising the Applicant of its intended course of meeting with the staff of the Commission to ascertain what the Commissioner had been informed of regarding how prices were set with an undertaking to provide the Applicant with the opportunity to respond to any information adverse to its interests that the Panel might become aware of during that conference subject to its obligations of confidentiality. In the absence of any submissions directed to the point on behalf of the First Respondent there appears to the Court to have been nothing to have prevented the Panel from subsequently communicating to the Applicant (without reference to confidential detail) a non-confidential summary of what it had been informed of. I have been altered to nothing that would have prevented the Panel revealing to the Applicant that although arrangements existed between the respective related entities the confidential verification reports it had been provided with indicated that the export price(s) that had been investigated by the Commissioner were at the same level as would have been arrived at by unrelated parties.

102    In my view the Panel failed to comply with the requirements of procedural fairness by holding a conference with the staff of the Commission in secret and then by not disclosing the substance of the information it had obtained as was both material to its decision making task and adverse to the Applicant to permit the Applicant an opportunity to respond.

103    Subject to materiality Ground 3 is established.

104    The difficulty for the Applicant is that it thereafter advances nothing as would permit the Court to make a finding that the Panel’s breach of its duty could have led to the Applicant advancing a submission or putting forward other facts which might have altered the outcome of the Panel’s decision.

105    In so far as compliance with its duty to provide the Applicant with an opportunity to be heard might have prompted the Applicant to advance a submission the effect that the mere existence of any arrangement between the parties relating to price required the Panel to conclude that the relevant sales were not at arms length by reason of the operation of s 269TAA(1)(b) the Court has given its reasons for rejecting that contention.

106    In so far as the provision of such information might have permitted the Applicant to controvert any of the facts about which the Commission had been informed (as might have been capable of being disclosed without revealing confidential details) nothing has been advanced on behalf of the Applicant as would suggest (let alone establish) that the Applicant had any responsive materials available to be drawn the Panel’s attention.

107    If needs be said I reject the submission that the Applicant might have elected to have filed further submissions in reliance on the TPS Report in those circumstances and that had it done so a different decision might have been reached. That report and Ms Smit’s opinion were already before the Panel. It is not disputed that the Panel had regard to that report.

108    In its written submissions the First Respondent pithily summarises the position regarding the actual circumstances as would have prevailed as follows;

48.     First, the practical injustice of which Wilson complains appears to comprise the lost opportunity to be heard by way of submissions about the Commissioner’s approach to the assessment of the arms length nature of the relevant transactions between related exporters and importers. However, Wilson had had many opportunities to advance its case on this issue. Wilson’s application for review (in so far as it concerned the termination decisions that were subsequently affirmed by the Panel) centred around various complaints in relation to the Commissioner’s construction and application of s 269TAA(1)(b). Wilson had repeatedly made submissions on that point to the Commissioner …..and these submissions formed part of the material before the Panel. Wilson also made detailed submissions to the Panel on this question of construction …. In particular, Wilson’s submissions advanced its view that s 269TAA(1)(b) was enlivened whenever an associated entity had any effect on pricing (including through internal policies, guidelines or directives). The Panel was fully aware of Wilson’s approach to the construction of the provision….. but ultimately did not accept that approach. Further, the reference to the Commission’s approach to s 269TAA(1)(b) at the conference was consistent with the Commissioner’s description of that approach in its Termination Report….

49.     Accordingly, this is not a case in which the procedure adopted by the Panel “can be shown itself to have failed to afford a fair opportunity to be heard”, nor is it a case in which “[t]he practical injustice lies in the denial of an opportunity which in fairness ought to have been given”. Rather, Wilson had a fair opportunity to be heard on the legal and factual questions concerning the construction and application of s 269TAA(1), and has not pointed to anything that it could have said on those questions that it did not in fact say.

(footnotes and references to other paragraphs in submissions omitted)

109    I accept those submissions.

110    The course of authority subsequent to the High Court’s decision in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 has favoured the view that inutility of relief does not merely give rise to a discretion to refuse relief. Having regard to the decision in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 I take it now to be settled law that absent a Court being satisfied that, but for the breach, there is a reasonable possibility that different outcome could have been reached by a decision maker, a failure to accord natural justice will not be jurisdictional error. The burden of demonstrating that a different outcome might or could have been arrived at had the breach not occurred is upon the party asserting the error.

111    Although the Court is satisfied that that the Panel failed to accord procedural fairness to the Applicant and erred in law in that regard, in the circumstances applying its failure was not material. It did not cause the Panel’s decision making to miscarry and its failure was not a jurisdictional error.

112    Ground 3 must be dismissed on that basis.

Conclusion and Orders

113    The Applicants’ application for judicial review of the determinations made by the Panel to affirm the decisions of the Commissioner to terminate the relevant anti-dumping investigations are dismissed.

114    The parties should be heard as to costs.

115    In that regard the Court is provisionally of the view the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 ought not disentitle the First Respondent to its costs. The Court is provisionally of the view that the Panel was entitled by nature of its singular role and expertise, to take an active part in contesting the submissions advanced by the Applicant.

116    However, the Court is also provisionally of the view that the unsuccessful Applicant ought not to be required to pay more than one set of costs.

117    Unless any party seeks a different order the Court will order that the Applicant pay the First Respondents costs as agreed, or in default of agreement, as may be taxed.

118    A party seeking a different order must file and serve written submissions limited to 3 pages with its application within 7 days of the publication of these reasons. Any responsive written submissions limited to 3 pages must be filed and served within 7 days thereafter. Any reply submissions limited to 1 page must be filed and served within 7 days of the filing of any responsive submissions.

119    Unless otherwise ordered the question of costs will be determined on the papers.

Associate:

Dated:    4 June 2021

SCHEDULE OF PARTIES