Federal Court of Australia

Vega Industries Australia Pty Ltd v Comptroller-General of Customs [2024] FCA 1343

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Applicant pay the Respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

HESPE J:

Introduction

1    This is an appeal, brought in the original jurisdiction of this Court, from a decision of the Administrative Appeals Tribunal which affirmed a decision of the respondent (the Comptroller) to refuse an application made by the applicant (Vega) for a tariff concession order (TCO) pursuant to s 269P of the Customs Act 1901 (Cth) in relation to cast high chromium (HiCr) grinding balls.

Background

2    The background to this application is set out in the Tribunal’s reasons (TR) at [28]–[40].

3    On 8 July 2021, Vega lodged an application for a TCO (TCO application). As gazetted, the TCO application was for:

GRINDING BALLS, cast steel, having a chromium content NOT less than 10%

4    Commonwealth Steel Company Pty Ltd (trading as Molycop), a manufacturer of forged grinding balls in Australia, objected to Vega’s TCO on the basis that the TCO application did not meet the core criteria in s 269C of the Customs Act because Molycop produced “substitutable goods” in Australia in the ordinary course of business.

5    The Comptroller refused to make the TCO on the basis that the goods the subject of the TCO application (TCO goods) did not meet the core criteria in s 269C. Vega sought internal review of the Comptroller’s decision. On 28 January 2022, the Comptroller affirmed the original refusal decision. Vega applied to the Tribunal for review of the Comptroller’s decision to affirm. The Tribunal affirmed that decision on 8 December 2023.

Statutory framework

6    The relevant statutory framework was summarised by the Full Court in Comptroller-General of Customs v Alstom Transport Australia Pty Ltd [2022] FCAFC 109; 293 FCR 381 (Alstom (No 2)) at [7]–[17] (Markovic, Thawley and Hespe JJ).

7    For present purposes it is sufficient to note that the “core criteria” will be satisfied if there are no “substitutable goods” produced in Australia. “Substitutable goods” are goods that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the TCO application or the TCO can be put.

8    Whilst not a substitute for the statutory test, Robertson J in Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757 at [57] provided the following practical guide to determining whether there are “substitutable goods” as defined in s 269B(1) of the Customs Act.

A practical analysis would be:

(i)     what are the TCO goods?

(ii)     to what use or to what uses are they put or can they be put?

(iii)     what are the goods claimed to be substitutable?

(iv)     to what use or to what uses are they put or are they capable of being put?

(v)     are the uses in (ii) and (iv) or any of them corresponding uses?

The Tribunal’s decision

9    It was common ground that the forged grinding balls produced by Molycop were produced in Australia in the ordinary course of business. The issue for the Tribunal was whether the forged grinding balls produced by Molycop were “substitutable goods” for the TCO goods.

10    The Tribunal at TR [106] referred to the practical analysis articulated by Robertson J in Nufarm and went on to consider each of its five steps.

11    In respect of the first step, the Tribunal found at TR [112]:

The TCO Goods, as Gazetted, are the TCO Goods the subject of the TCO Application (see para #31 above).

12    At TR [31], the Tribunal recorded the description and stated use for the TCO goods as recorded in the Gazette Notice. The description of the TCO goods is set out at [3] above. The stated use was in the following terms:

For the grinding of rocks and minerals in a mining mill.

13    At TR [113], the Tribunal observed that:

There is no qualification as to the size of the balls, merely that they contain not less than 10% chromium content, and are cast steel grinding balls.

14    In respect of the second step, the Tribunal at TR [114] quoted the Full Court in Alstom Transport Australia Pty Ltd v Comptroller-General of Customs [2020] FCAFC 43; 275 FCR 652 (Alstom (No 1)) at [56] and observed (at TR [115]) that:

It is not uses to which any grinding balls can be put, but what are the uses of grinding balls with the description specifications in the TCO Order.

15    The Tribunal noted the stated use of the TCO goods in the TCO application and considered that stated use to be relevant as reflecting Vega’s own understanding of the use of the TCO goods at the time of making the TCO application: TR [122]–[123]. The Tribunal referred to the evidence, finding that (at TR [125]–[126]):

Primarily the TCO Goods are used as grinding media in the grinding process of many different kinds of mineral ores (such as iron, gold/copper. Lead-zinc, bauxite and coal) in ball mills.

and

HiCr balls are not used in ball mills in Australia to pulverise coal or for use in SAG [semi-autogenous] mills.

16    The Tribunal considered not only the actual uses to which the TCO goods are put but also the potential uses, noting (at TR [127]) that only reasonable potential uses were to be considered, relying on the Full Court’s decision in Chief Executive Officer of Customs v Toyota Material Handling Australia Pty Ltd [2012] FCAFC 78; 203 FCR 129. The Tribunal also observed that a reasonable use need not be a sensible commercial use, also referring to Toyota at [19] (Finn, Gilmour and Perram JJ).

17    After considering the evidence, the Tribunal found that:

(1)    Over the last few decades some mines have transitioned, or are in the process of transitioning, from forged grinding balls to cast HiCr balls (at TR [144]).

(2)    Mines had been using forged balls for the same uses they are now using cast HiCr balls (at TR [145]).

(3)    Essentially the cast HiCr balls constitute new technology which is replacing the older forged ball technology (at TR [146]).

(4)    Both the applicant’s witness and the respondent’s witness agreed that the TCO goods could be used to grind sand (at TR [147]).

(5)    The TCO goods can also be used (at TR [148]):

(a)    to grind coal;

(b)    to grind metal slag and other by-products of smelters;

(c)    to grind raw materials prior to being fired in a cement kiln;

(d)    to grind cement clinker produced by a cement kiln to cement powder;

(e)    in tower mills, which are vertical rotating mills.

18    In respect of the third step, the Tribunal (at TR [152]) found the goods claimed to be substitutable were:

…forged steel grinding balls, with or without alloys, sized between 25 to 140 mm.

19    In respect of the fourth step, the Tribunal (at TR [161]) accepted the evidence of the respondent’s witness that the forged grinding balls said to be substitutable are used as follows (original emphasis):

13.1.     Predominately, in the comminution (size reduction) of mineral ores, as the grinding media in SAG mills and ball mills operating at ore processing plants at various mines;

13.2.     Pulverising coal before it is fed into a coal-fired power station, as the grinding media in ball mills at regional power stations;

13.3.     Grinding gypsum [later corrected to sand] and other materials for use in building materials, as the grinding media in ball mills operated by building materials companies; and

13.4.     Grinding byproducts from other metallurgical processes such as lead smelters, zinc refineries, aluminium smelters, and copper refineries. These types of applications are relatively minor compared to the use of forged media in mineral processing applications.

20    The Tribunal also accepted that witness’s evidence that:

(1)    The goods said to be substitutable are used at over 70 different mine sites processing a wide range of mineral ores (at TR [162]).

(2)    The substitutable goods could be used to grind coal in ball mills (at TR [163]).

21    In respect of the fifth step, the Tribunal observed that the focus is “on the outcome (i.e., end use of the good) rather than the process by which it achieves that use” (at TR [175]) and that a single corresponding use is all that is required in order for goods to be substitutable for the TCO goods (at TR [176]).

22    The Tribunal found that both parties agreed that some mills use cast HiCr balls (at TR [181]). Although preferring the evidence of the applicant’s witness on technical scientific matters, the Tribunal (at TR [186]) accepted the evidence of the respondent’s witness that:

HiCr balls are put to all the uses that our Australian produced forged balls are put with the exception of use in SAG mills.

23    The Tribunal concluded that (at TR [187]):

If HiCR [sic] balls are now undertaking the same activities as forged balls were previously, they must be, despite any technological advancements, substitutable. Mr Steinier essentially acknowledged this proposition.

24    The Tribunal also referred to evidence that Australian mines had switched from Australian produced forged balls to the TCO goods, or vice versa, in ball mills, which demonstrated a “corresponding use” (at TR [193]).

25    The Tribunal found (at TR [195]) that:

The evidence demonstrates there is more than one corresponding use between the grinding balls under consideration.

Grounds of appeal

26    An appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) is limited to a question of law. The applicant relies upon six alleged questions of law. The questions relied upon are:

(1)    Whether the Tribunal properly construed the definition of “substitutable goods” in s 269B(1) of the Customs Act when deciding that the applicant’s TCO application did not meet the “core criteria” for the purpose of s 269P(3) of the Act.

(2)    Whether the Tribunal failed to correctly identify the TCO goods.

(3)    Whether the Tribunal, when considering the uses of the TCO goods, erred in identifying the uses of a broad genus of goods instead of the goods described in the TCO application.

(4)    Whether the Tribunal, when determining if substitutable goods were produced in Australia, failed to consider the evidence of the respective uses of the TCO goods and the goods alleged by the respondent to be substitutable, as at the date on which the TCO application was lodged (the lodgement date).

(5)    Whether the Tribunal impermissibly considered the “stated use” set out in the TCO application form when determining the uses of the TCO goods.

(6)    Whether, when determining that forged balls could be put to the same uses as the TCO goods, the Tribunal erred in relying on the opinion of the only witness called by the respondent.

27    The first question raised by the applicant appears to be an overarching question that is informed by the questions that follow.

28    In respect of the questions of law the applicant purports to raise, the applicant relies upon the following grounds:

(1)    The Tribunal failed to identify the TCO goods, as they were described in the TCO application, before determining their uses.

(2)    The Tribunal erred in identifying the TCO goods by reference to all of the possible uses of grinding balls instead of identifying the goods described in the TCO application and then considering their uses.

(3)    The Tribunal, when determining the uses of the TCO goods, identified an impermissibly broad genus of use for those goods.

(4)    The Tribunal relied upon the “stated use” of the TCO goods on the erroneous assumption that that stated use formed part of the description of the goods in the TCO application and it informed the use of the TCO goods.

(5)    When finding that the use of the TCO goods contended by the applicant was too narrow and did not accord with the evidence, the Tribunal failed to give any consideration to the evidence of Mr Dunn, the senior manager employed by Molycop, as to Molycop’s identification of the TCO goods and their uses.

(6)    The Tribunal disregarded the evidence as to the differentiation by the mining industry between forged grinding balls and the TCO goods as at the lodgement date. In doing so the Tribunal failed to determine the particular ways in which the TCO goods are to be used.

(7)    The Tribunal repeatedly accepted and gave weight to the opinions expressed by Mr Dunn, who was the only witness called by the respondent, as to the possible uses of the TCO goods in circumstances where Mr Dunn was not qualified as an expert to give his opinions, did not base his “views” on personal experience; and there was no other evidence to support or corroborate his stated views.

Submissions of the parties

29    In its submissions, the applicant addresses grounds 1–3 together. The applicant submits that the Tribunal failed to identify the goods by reference to each of the features of the TCO goods that formed part of the description of the goods. The applicant submits that the Tribunal identified the TCO goods as “no more than grinding balls, irrespective of the additional features” and that the Tribunal should have considered whether the characteristics conferred by the method of manufacture (being casting) and the chromium content resulted in the TCO goods having a narrower class of use than grinding media in general. The applicant submits that the Tribunal conflated the identity of the TCO goods with the use of grinding balls simpliciter. The TCO goods were said to have uses for which they are “uniquely suitable” because of their particular characteristics.

30    In relation to ground 4, the applicant submits that the Tribunal erred in taking cognisance of the “stated use” provided for in the TCO application as relevant to an assessment of the intended use of the TCO goods and as reflecting the applicant’s own understanding of the use of the TCO goods. This error was said to have resulted in the Tribunal’s “broadening of the genus of use of the TCO goods” which led to the Tribunal’s conclusion that forged steel balls are substitutable for cast HiCr balls.

31    In relation to ground 5, the applicant submits that the Tribunal failed to “give any consideration” to the evidence of the respondent’s witness as to Molycop’s identification of the TCO goods and their uses in finding that the use of the TCO goods contended for by the applicant was too narrow. The applicant contends that the TCO goods are used:

to facilitate the processing of minerals by liberating the valuables from the gangue while simultaneously optimising the surface chemistry of the particles and the pulp chemistry during the subsequent separation and recovery of the valuables

32    The applicant submits that Molycop’s description of the use of its own cast HiCr balls, how it markets them and the requirements of its customers “delineates the identification of the goods by Molycop, and by the mining industry”.

33    In relation to ground 6, the applicant submits that the reasonable actual or potential uses of the TCO goods are to be determined by reference to those who use the goods in the mining industry. The substitutability of goods produced in Australia must be determined as at the date on which the application is lodged. Because cast HiCr technology is a very recent development and has been embraced by the mining industry as the new paradigm for fine grinding, the applicant submits that evidence of historical use of other grinding media is of little if any utility in assessing the application against the core criteria. The applicant submits that the Tribunal ought to have accepted the applicant’s witness testimony that almost every mine had transitioned to using cast HiCr balls in their ball mills and mines that have transitioned have not reverted back to the use of steel forged balls.

34    In relation to ground 7, the applicant submits that the Tribunal erred in giving weight to the opinions of the respondent’s witness who the Tribunal found did not have specialised scientific knowledge. The applicant submits that although the Tribunal is not bound by the rules of evidence, the Tribunal was “required” to have regard to the principles underlying s 76 of the Evidence Act 1995 (Cth) and should have accorded no weight to the views expressed by the respondent’s witness regarding the use of cast HiCr balls for, inter alia, grinding coal, magnetite or sand.

35    The respondent submits that the applicant’s grounds do not establish error on the part of the Tribunal and are “misconceived” because:

(1)    The applicant conflates the Tribunal’s findings as to the uses of the TCO goods with the Tribunal’s findings as to the identity of the TCO goods.

(2)    The applicant seeks to narrow the scope of the uses to which the TCO goods and the substitutable goods are or can be put by reference to the optimal or commercially sensible actual use of those goods.

(3)    The applicant’s arguments assume that correspondence of use requires that the uses be the same (or, at least, that the optimal uses be the same).

Analysis

General context

36    At the heart of the applicant’s submissions is a complaint that the Tribunal had not identified the use of the TCO goods by having regard to the description of those goods and the features of those goods. Cast HiCr balls are designed for use as part of a different process for the extraction of minerals than forged grinding balls. The submission was that the relevant uses were those that employed the features of the goods as identified in the description of the goods in the TCO application.

37    This submission was said to be supported by the decision of the Full Court in Alstom (No 1) where the Full Court, having examined the statutory scheme, concluded at [53] that “the Act is concerned with the particular way goods, as described in a TCO application, are to be used” and at [56] that “the Tribunal’s task is not to identify a broad genus of use but the use of the actual goods described in the TCO application” (Davies, Markovic and Steward JJ).

38    The statutory concept of “substitutable goods” was further elaborated upon in Alstom (No 2), in which the Full Court made six observations on the statutory scheme. Those observations are applicable in the present case. As was explained in Alstom (No 2), in applying the statutory definition of substitutable goods in s 269B(1) of the Customs Act, the identification of the TCO goods is a separate and distinct task from the identification of the actual and potential uses of those goods. The description of the TCO goods informs but does not determine the identification of the uses of those goods. As the Full Court stated at [62]–[63] (Markovic, Thawley and Hespe JJ):

It is for the Tribunal to determine whether, and the extent to which, particular aspects or features of the TCO goods are relevant to the identification of use. The answer will depend upon the particular goods involved. The manner in which the goods operate, as identified in the description of the TCO goods, may, but will not necessarily, affect the conclusion as to the actual or potential uses of the goods.

39    The exercise involves an evaluative judgement. There may not always be “a bright dividing line demarcating when, or the extent to which, the means by which goods operate affects use”: Alstom (No 2) at [26] (Markovic, Thawley and Hespe JJ). The means by which goods operate may be relevant to answering the statutory question if, and to the extent to which, the means affects the use of the goods. The features of the TCO goods as described in the TCO application need to be considered in determining the uses to which those goods are or can be put, to the extent the Tribunal considers those features affect the actual or potential uses.

40    In determining the uses to which the TCO goods are and are capable of being put, all reasonable uses are to be considered. The relevant uses are not limited to uses which take advantage of or make the best use of the features of TCO goods. All and any reasonable uses to which the TCO goods are or are capable of being put are relevant. Reasonable uses are not confined to commercially sensible uses: Toyota at [19] (Finn, Gilmour and Perram JJ).

41    It is in this context that the applicant’s grounds of appeal and Tribunal reasons are to be considered.

Grounds 1–3

42    As is apparent from the summary of the Tribunal’s reasons set out above, the first ground of appeal is not made out. The Tribunal identified (at TR [112]) the TCO goods as described in the TCO application, before determining their uses. The Tribunal observed the features of the TCO goods at TR [113] as balls of cast steel, containing not less than 10% chromium content and not being qualified by size. Contrary to the submissions of the applicant, the Tribunal did not identify the TCO goods as grinding balls simplicter.

43    The second and third grounds of appeal may be dealt with together. The essence of the complaint is that the Tribunal failed to consider the features of the balls in determining their uses. The applicant contends that the Tribunal cast the genus of use too widely by not focussing on the specialised uses for which the TCO goods were designed and intended to be used.

44    The Tribunal was careful to articulate its task when considering the issue of use at TR [115]. It understood correctly that its task was not to consider the use of grinding balls generally but the uses of grinding balls as described in the TCO application.

45    The Tribunal separately considered the actual uses to which the TCO goods were put (at TR [116]–[126]) and their potential uses (at TR [127]–[148]). In so far as their actual uses were concerned, the Tribunal at TR [125]–[126] concluded that the TCO goods are used as grinding media in the grinding process of many different kinds of mineral ores in ball mills for non-SAG applications. The Tribunal thus identified the use of the TCO goods by reference to the minerals the subject of the grinding process and the sort of mills in which the TCO goods are used.

46    The Tribunal reviewed the evidence in relation to potential uses of the TCO goods. It concluded that over the last few decades some mines have transitioned, or are in the process of transitioning, from forged grinding balls to cast HiCr balls (being the TCO goods) and that mines had been using forged balls for the same uses they are now using cast HiCr balls. The Tribunal found that the cast HiCr balls were new technology replacing the older forged ball technology (TR [145]) and there was a basis for believing that the TCO goods are far superior to the average forged grinding ball in terms of optimising efficiency (TR [134]).

47    The TCO goods may be regarded as optimising efficiency because the effect the TCO goods has on the surface of the valuables in the milling process is different from forged balls (TR [75]–[76] and [85]). The physical process by which the TCO goods grind is different from forged balls and can result in a more efficient outcome.

48    To merely identify that the TCO goods work in a technical way that is different from the goods said to be substitutable does not answer the question of use. The Tribunal’s task in identifying the use of the TCO goods is not addressed by a focus on scientific matters such as the properties of the goods or how they work: Nufarm at [56] (Robertson J). This was correctly recognised by the Tribunal at TR [130]–[132]. To describe the physical process by which goods work does not result in the identification of the use of the goods.

49    Scientific matters such as the technical properties of the goods are relevant to the question of use only when those matters affect the uses to which the TCO goods are or can be put. As was explained in Alstom (No 2) at [62] (Markovic, Thawley and Hespe JJ), the manner in which a good works may, but will not necessarily, affect the conclusion as to the actual or potential uses of the goods. It is part of the fact finding task of the Tribunal to determine if the manner in which the TCO goods work affects their use. Upon the last remitter to the Tribunal in Alstom, the Tribunal concluded that the TCO goods (in that case driverless, single deck trains with specified technical features) and the network on which they are to operate are “entirely integrated and are of no reasonable functional use if they are separated”: Alstom Transport Australia Pty Ltd v Comptroller-General of Customs [2023] AATA 3498 at [49]. In those circumstances, how the trains worked was necessarily found to affect their use.

50    On the facts as found by the Tribunal in the present case, the Tribunal determined the use of the TCO goods by reference to the ores (at TR [125]) and other materials (at TR [148]) they are used to grind and the types of mills in which they are used (TR [125] and TR [148(e)]). The precise manner in which the grinding balls worked was not found by the Tribunal to otherwise determine their use. That finding of fact was not unreasonable. It was a conclusion that was open to the Tribunal on the evidence.

51    The task for the Tribunal is not to identify the uses for which the TCO goods are best suited, but to identify all reasonable uses to which the TCO goods are or are capable of being put: Toyota at [19] (Finn, Gilmour and Perram JJ). This was correctly recognised by the Tribunal here at TR [127]–[129]. The fact that the TCO goods optimise the chemical processes in a ball mill or that many users of the TCO goods choose not to revert to using forged balls once those users have transitioned to the TCO goods does not answer the statutory question. The question is not whether there are advantages to using the TCO goods over the goods said to be substitutable. The Tribunal did not err in considering that the use of the TCO goods could be identified by reference to the types of mills in which the grinding balls were used and the types of ores that the balls were used to process.

Ground 4

52    The Tribunal referenced the “stated use” as set out in the TCO application at TR [122] in its consideration of the uses of the TCO goods. The Tribunal did not assume the stated use formed part of the description of the TCO goods in the TCO application. At TR [31], the Tribunal separately referenced the description of the TCO goods and the stated use of the TCO goods as provided for in the Gazette Notice. At TR [113] the Tribunal observed that there is no qualification as to the size of the balls, merely that they contain not less than 10% chromium content and are cast steel griding balls. That observation reflects the description of the TCO goods in the TCO application and does not incorporate any part of the stated use. The contention that the Tribunal relied upon the “stated use” of the TCO goods on the erroneous assumption that it formed part of the description of the goods in the TCO application is not accepted.

53    Although the stated use forms part of the Gazette Notice, the stated use is not part of the legislative scheme in the same way that the description of the TCO goods is. As the Full Court explained in Alstom (No 1) at [51]–[52] (Davies, Markovic and Steward JJ), the legislative scheme ascribes great importance to the way goods are to be described in a TCO application. The stated use of the goods is not ascribed that same importance by the legislative scheme. Indeed, a TCO order cannot be made in respect of goods described in terms of their intended use: Customs Act s 269SJ.

54    In considering the stated use to be a representation made on behalf of the applicant as to the intended use of the goods, the Tribunal did not err. The Tribunal at TR [122] considered the stated use of the TCO goods as part of its consideration of the uses of the TCO goods. It did not rely upon that stated use as determinative but rather as reflecting the applicant’s understanding of the use of the TCO goods at the time the TCO application was made: TR [123]. As the stated use was provided to the Comptroller as part of the applicant’s TCO application, that was a reasonable inference to draw. The Tribunal noted (at TR [124]) that the stated use had been made in generalised terms and those terms did not include a limitation as to the types of minerals or rocks or the type of mining mills. The Tribunal went on to find that whilst there was no “type of ore which cannot be ground using the TCO goods” (at TR [125]), the Tribunal accepted the evidence that the TCO goods could not be used in SAG mills. The Tribunal drew its conclusions as to the use to which the TCO goods are put based on the evidence of the applicant’s witness. The Tribunal drew its conclusions as to the uses to which the TCO goods are capable of being put based on the evidence of both witnesses. Those conclusions were not determined by the stated use.

Ground 5

55    Ground 5 appears to be an attack on the Tribunal’s findings of fact concerning the uses to which the TCO goods are put or capable of being put.

56    The evidence of Mr Dunn, which the applicant contends was not considered, related to the contents of a Molycop brochure that describes the applications of cast HiCr balls sourced by Molycop from outside Australia.

57    The Tribunal did not fail to consider the evidence of Mr Dunn in regard to the brochure. The brochure is referenced by the Tribunal at TR [180] where the Tribunal accepts the “deficiencies” in Mr Dunn’s evidence identified by the applicant. The Tribunal quotes the following submission (errors in original and footnotes omitted):

36.     During his x-x Mr Dunn, inter alia,:

(a)     either agreed with, or was unable to comment on, the entire body of Mr Steinier’s scientific and technical evidence;

(b)     agreed that –

(i)     the description in the Molycop brochure of the use of HiCr balls in mining applications –

A] was correct,

B] was consistent with Molycop’s views,

(ii)     Molycop’s potential customers wanted HiCr balls for the two applications described in the brochure, and

(iii)     Molycop marketed and sold its HiCr balls for those applications;

(c)     was that unable to quantify, or even estimate, how many mines had switched from forged balls to HiCr balls for use in ball mills, or what had happened to Molycop’s sales since HiCr balls were introduced to the Australian industry;

(d)     admitted that he was able to find out how many mines had switched from forged balls to HiCr balls;

(e)    admitted that when he gave evidence that Molly Cop supplied over half the ball mills in the industry “I was sort of referring to mining operations”.

58    The contents of the brochure were not reproduced by the Tribunal. The brochure describes two categories of applications: mining applications and cement applications. Under mining applications, the brochure states:

Cast High Chrome grinding media has been designed to effectively liberate a wide variety of minerals such as gold, silver, lead, zinc, copper, iron, etc during the comminution process.

The chemistries have been designed for use in mining applications to ensure optimal product performance. Molycop can supply product with chrome levels ranging from 10% – 30% based on your requirements.

•    Primary/secondary ball milling: Cast High Chrome media with lower wear speed rates that offer a longer lasting product to liberate the desired minerals from crushed ore.

•    Regrind/fine grinding: Smaller ball sizes are offered that can be used for fine or regrind applications.

59    The brochure combines a description of use of the goods with a description of the advantages of the goods. The brochure, not surprisingly, emphasises the benefits of cast HiCr grinding media as being “designed…to ensure optimal product performance” and when applied for primary or secondary ball milling had “lower wear speed rates that offer a longer lasting product”.

60    The essence of the applicant’s complaint is that the Tribunal erred in rejecting the applicant’s contention that the actual use of the TCO goods is “to facilitate the processing of minerals by liberating the valuables from the gangue while simultaneously optimising the surface chemistry of the particles and the pulp chemistry during the subsequent separation and recovery of the valuables” (emphasis added). The Tribunal (at TR [120]) considered that that description did not accord with the evidence.

61    As explained above, the issue of use was a matter of fact to be found by the Tribunal. The task for the Tribunal was to identify the uses to which the TCO goods are put or are capable of being put. The Tribunal did not make an unreasonable finding of fact in not adopting a description of the benefits or advantages of the goods as a description of the use of the goods. Nor did the Tribunal make an unreasonable finding in concluding that the applicant’s description of the use of the TCO goods was not supported by the evidence. It was open to the Tribunal to make its findings based on its consideration of the totality of the evidence. The weight to be accorded to the content of Molycop’s brochure was a matter for the Tribunal.

Ground 6

62    By ground 6, the applicant contends that:

(1)    There was evidence that as at the lodgement date, the mining industry had come to differentiate between forged grinding balls and the TCO goods.

(2)    The Tribunal failed to consider that evidence.

(3)    As a result, the Tribunal failed to carry out its statutory task to determine the particular way in which the TCO goods are to be used.

63    The differentiation to which the applicant refers is what it describes as the “new paradigm” for grinding in the mining industry. The Tribunal in its reasons records the evidence of the applicant’s witness Mr Steinier that use of forged balls for grinding in ball mills was “over” (TR [144]). Mr Steinier’s evidence was that for those operations that had transitioned to the TCO goods, “they will not come back” (TR [146]). There was no failure by the Tribunal to consider evidence of a transition within the mining industry to the use of the TCO goods.

64    In submissions it became apparent that by this ground the applicant was seeking to challenge the Tribunal’s findings as to the substitutability of the goods produced in Australia. In its written submissions, the applicant submits that (emphasis in original and footnotes omitted):

40.     The statutory requirement that substitutability of goods produced in Australia must be determined as of the date on which the application was lodged is of paramount importance in the present case. The understanding and use of the cast HiCr technology is a very recent development of approximately the last decade, as is its embrace by the mining industry as the new paradigm for fine grinding and the liberation and recovery of valuables. Evidence of the historical use of other grinding media, and of the early research of the new medium, is therefore of little, if any, utility when assessing the application against the core criteria.

65    The applicant also sought to draw attention to evidence of a change in the practice in the mining industry from tendering for the supply of grinding balls generally to putting out separate tenders for cast HiCr balls and for forged grinding balls. It was submitted that this practice of separate tenders showed that industry participants viewed the different types of grinding balls as suited for different purposes or uses.

66    The statutory task for the Tribunal is not limited to determining the way in which the TCO goods or any substitutable goods are currently used or are intended to be used but also to consider how they are capable of being used. The issue for determination is not whether it is commercially sensible to substitute forged balls for the TCO goods. The Tribunal considered and did not reject the evidence of Mr Steinier that there were benefits to using the TCO goods over the Australian produced goods (see for example, TR [191]). The Tribunal considered that the fact that historically forged balls had been used in the same mills for processing the same ores or the same materials supported a conclusion that the Australian produced goods were capable of being put to a use that corresponds with a use to which the TCO goods can be put. The Tribunal found that the fact that Australian mines had switched and continue to switch from forged balls to the TCO goods demonstrated a corresponding use (TR [192]–[193]). That conclusion of fact was not unreasonable.

Ground 7

67    The applicant contends that the Tribunal made an error of law in accepting and giving weight to the evidence of Mr Dunn in circumstances where that evidence was opinion evidence that did not satisfy s 76 of the Evidence Act. The applicant accepted that the Tribunal was not bound by the rules of evidence but contended that in accepting and according weight to that evidence, the Tribunal acted unreasonably.

68    The respondent submitted that there is some tension between this ground and ground 5. There is some force in that contention.

69    Section 33(1)(c) of the AAT Act provided:

(1)    In a proceeding before the Tribunal:

….

(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

70    As Hill J stated in Casey v Repatriation Commission (1995) 60 FCR 510 at 514:

…s 33 of the AAT Act means what it says. The fact that material may be inadmissible in accordance with the law of evidence does not mean that it can not be admitted into evidence by the Tribunal or taken into account by it. The criterion for admissibility of material in the Tribunal is not to be found within the interstices of the rules of evidence but within the limits of relevance.

71    The Tribunal did not act unreasonably in the manner in which it considered Mr Dunn’s evidence. The Tribunal was careful to acknowledge the limitations of Mr Dunn’s expertise and preferred Mr Steinier’s evidence on scientific and technical matters (TR [183]–[184]). The Tribunal relied upon and accorded weight to Mr Dunn’s evidence of how his clients actually use the Australian produced balls (TR [164]). Mr Dunn could reasonably be expected to have knowledge of how his clients used the Molycop forged balls because he is the technical services manager at Molycop responsible for a team that provides technical support to Molycop’s customers (TR [82]–[83]).

72    The Tribunal based its conclusion that there was at least one corresponding use between the grinding balls under consideration and the TCO goods on its finding that there were Australian mines that had switched from forged balls to cast HiCr balls (being the TCO goods) or vice versa (TR [192]–[193]). The Tribunal observed that its finding was consistent with the evidence of Mr Steinier. The Tribunal reasoned that:

If HiCR [sic] balls are now undertaking the same activities as forged balls were previously, they must be, despite any technological advancements, substitutable.

73    The Tribunal did not act unreasonably in making this finding.

74    The Tribunal also found that there were other corresponding uses between the TCO goods and the Australian produced goods (forged balls). The Tribunal found that both could be used to grind coal in a ball mill. In so doing, the Tribunal referenced the evidence of Mr Dunn in so far as that evidence concerned the use of forged balls and referenced the evidence of Mr Steinier in relation to the use of the TCO goods (at TR [148]). For the reasons explained above, considering the evidence in that way was not unreasonable.

75    Ground 7 does not establish an error of law.

Disposition

76    The identification of the TCO goods is a separate and distinct task from the identification of the uses of those goods. Alstom (No 1) requires the Tribunal to consider all reasonable actual and potential uses of the TCO goods. Those uses are to be determined by reference to the TCO goods as described. The Tribunal in the present case did not lose sight of the fact that it had to determine the actual and potential uses of TCO goods that were cast HiCr balls. Contrary to the applicant’s submissions, in considering the use to which the TCO goods are put or can be put, the Tribunal was not required to disregard uses which did not make optimal use of the distinguishing features of the TCO goods over other grinding balls or to exclude uses to which the TCO goods could be put but to which the TCO goods were not uniquely suited.

77    As was explained in Alstom (No 2), the way in which or the means by which goods work may but will not necessarily be relevant in determining their use. It depends on the goods. The Tribunal in this case did not find as a fact that the process by which the grinding balls worked in a ball mill to grind ore was relevant to determining the use of the grinding balls in the same way that the manner by which the forklifts worked in Toyota was not considered relevant to their use or the way in which the weed killers worked in Nufarm was not considered relevant to their use.

78    The applicant’s grounds of appeal do not establish that the Tribunal made an error of law. The applicant’s appeal is dismissed, with costs.

Associate:

Dated:    22 November 2024