Federal Court of Australia

Electra Cables (Aust.) Pty Limited v Minister for Industry and Innovation (No 2) [2026] FCA 879

ORDERS

THE COURT ORDERS THAT:

1. Pursuant to s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the following decisions are set aside in part, and only to the extent provided for and necessary to give effect to these orders:

(a) the decision of the first respondent made on 30 September 2024 under s 269ZZM(1)(a) of the Customs Act 1901 (Cth) (Customs Act), published by notice on 10 October 2024 under s 269ZZM of the Customs Act (Minister’s 2024 Decision) in relation to the review conducted by the second respondent (Review) concerning the Anti-Dumping Notice No. 2022/019 dated 29 August 2022 (ADN 2022/019); and

(b) the decision of the second respondent made on 30 August 2024 under s 269ZZK(1) of the Customs Act and published on 10 October 2024 (ADRP Report 160A) in respect of the Review concerning ADN 2022/019.

2. Pursuant to s 16(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the matter is referred back to the second respondent:

(a) for determination according to law of the following issue, together with the consequences for the outcome of the application for Review, namely the correct application of s 269TAF(1) of the Customs Act in respect of the conversion of the deductive export price from AUD to RMB in respect of goods exported by Guilin International Wire & Cable Co. Ltd, which conversion must use the exchange rates on the date of each of the transactions, being the individual invoice dates for each of the export consignments; and

(b) on the basis that the second respondent’s decision is made on remittal on the material that was previously before the second respondent in making ADRP Report 160A, save for such further material that the second respondent requests as to the issue in Order 2(a).

3. The application otherwise be dismissed.

4. The respondents pay one third of the applicant’s costs of the proceedings, as agreed or assessed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION

1 On Christmas Eve last year, I delivered judgment in this proceeding: Electra Cables (Aust.) Pty Limited v Minister for Industry and Innovation [2025] FCA 1677 (PJ). These reasons assume familiarity with that judgment. It suffices to note that, in the PJ at [2], I described the case as primarily concerning:

how an “export price” is determined under s 269TAB of the Customs Act 1901 (Cth) (Customs Act) for the ultimate purpose of determining whether “dumping” has occurred. Generally, “dumping” occurs when the “export price” for the relevant goods is less than the “normal value” of those goods. Therefore, determining the “export price” is of central importance. To those unaccustomed to the terms of the Customs Act, one would have thought this would be a relatively straightforward exercise, but as is explained below, this has not proven to be the case.

2 In the end, I rejected Ground One of the application but upheld Ground Five. It was unnecessary to determine Grounds Two, Three and Four, as they were each contingent upon the success of Ground One.

3 When judgment was delivered, it was common ground that, if only Ground Five was successful, it was preferable that I not immediately determine questions of relief. The parties were accordingly given an opportunity to file further evidence and submissions, and they have now done so. I also ordered that the proceeding be adjourned part-heard for a further hearing on the question of relief on a date to be fixed in February 2026, but, unfortunately, today is the first date in 2026 on which both the Court and counsel for the parties are available.

4 Three questions arise for determination: first, whether I should receive and act upon additional affidavit evidence filed by the parties; secondly, whether relief should be refused notwithstanding the legal error identified in the PJ; and thirdly, assuming relief is to be granted, what form that relief should take. It is also necessary to determine the appropriate order as to costs.

5 The respondents contend that relief ought to be refused altogether or, alternatively, that any relief be confined in a manner narrower than that sought by the applicant. In support of that contention, the respondents sought to rely upon additional affidavit material directed to demonstrating the consequences of applying what I found to be the correct construction of s 269TAF(1) of the Customs Act 1901 (Cth) (Customs Act).

B ADDITIONAL EVIDENCE

6 The respondents sought to rely upon an affidavit of Mr Patrick Quiggin affirmed 1 August 2025 and a further correcting affidavit of the same deponent affirmed 11 February 2026. The applicant sought to rely upon an affidavit of Mr Charles Yi Zhan affirmed 16 February 2026.

7 During the course of argument, it was suggested that the affidavit material proposed to be read by the respondents went to two issues: first, the utility of relief generally; and secondly, the scope of any remittal. The applicant’s position is that, if I were to reject the affidavit evidence sought to be relied upon by the respondents, it would be unnecessary to adduce the affidavit material upon which it sought to rely.

8 It is tolerably clear that the affidavits of Mr Quiggin describe how he gives effect to s 269TAF(1) of the Customs Act and identifies the “rate of exchange” he considers reflects the approach mandated by the PJ. During the course of argument on admissibility, it was asserted, as I had anticipated, that this would produce a different result and, on Mr Quiggin’s proposed evidence, an increase to the dumping margin.

9 The affidavit of Mr Zhan correctly characterises the task undertaken by Mr Quiggin, but contends that Mr Quiggin’s evidence does not consider “the matters raised in section 269TAF(2) or (4) of the Customs Act with respect to the rate of exchange” nor fully address what he describes as “multi-level calculations required to correct the calculation errors associated with Ground 5 error” (at [5]).

10 I do not consider that the affidavit material should be received for the purpose for which it is sought to be adduced. There are essentially two reasons for reaching that conclusion.

11 First, receipt of the material would divert attention from the limited question presently before the Court. In the PJ, I determined the legal issue raised by Ground Five. What now falls to be determined is the appropriate relief flowing from that conclusion.

12 The affidavit material is directed to demonstrating what the outcome of a lawful reconsideration may be if certain calculations are undertaken in a particular way. Receiving such material would impermissibly draw the Court into a contest concerning the merits of competing calculations and views as to what might ultimately emerge from a lawful reconsideration. That is not the task presently before the Court; nor is it the function of a court conducting judicial review to determine, in advance, what substantive conclusion should be reached once the statutory decision-maker undertakes the task according to law. I have been quite plain as to the scope of the error in the PJ, and I propose to make orders which make pellucid the scope of any remittal. Properly understood, the error concerns the correct application of s 269TAF(1) of the Customs Act.

13 Secondly, the material is not new. As appears to be common ground, the subject matter of the evidence was known to the respondents prior to the hearing. In its submissions, the applicant referred to correspondence suggesting an exchange between the parties occurred prior to the substantive liability hearing concerning the respondents possibly relying upon such material. The applicant made plain that, if such evidence was relied upon, it would seek to respond to it and deal with the issues thereby raised.

14 Notwithstanding that position, the respondents did not press their reliance on the material at the initial hearing. There is no suggestion that this was other than an entirely responsible forensic choice. But it should be noted that the subject matter of the affidavit material now relied upon was known to the respondents. That tends against receiving the material, notwithstanding my invitation to defer questions of relief which only emerged during the course of argument at the hearing.

15 For those reasons, I do not regard the additional affidavit material as assisting in the determination of the relief that should now be granted.

C WHETHER RELIEF SHOULD BE REFUSED

16 I also reject the respondents’ submission advanced in writing that relief should be refused altogether. The PJ identified a legal error affecting the approach taken under s 269TAF(1). It is common ground that the error was not immaterial. Indeed, as I observed in the PJ, the use of the correct exchange rate would necessarily have resulted in a different export price being determined: PJ [105].

17 The fact that a lawful reconsideration may ultimately produce an outcome more or less favourable to the successful litigant is not itself a sufficient reason to refuse relief following the establishment of jurisdictional error. Cases in which relief is refused altogether, notwithstanding the establishment of legal error, remain exceptional. This is not such a case.

D FORM OF RELIEF

18 The next question is what form the relief should take.

19 The applicant submitted that each impugned decision should be quashed and the matter remitted to the third respondent, the Commissioner of the Anti-Dumping Commission. The Minister submitted that, if relief were granted, it should take the form of a confined remittal to the second respondent, the Anti-Dumping Review Panel.

20 In my view, the respondents’ submission should be accepted.

21 It is necessary to have regard to the history of this matter and the confined nature of the relief. That history was set out in some detail in the PJ and need not be repeated at length. It suffices to note that the original investigation commenced many years ago. Since then, there have been multiple administrative decisions, review processes, two previous judicial review proceedings, consent orders setting aside decisions, a further reconsideration process and now the present proceeding. It would be difficult to describe the procedural history as anything other than lengthy and convoluted.

22 The applicant is entitled to the benefit of its success on Ground Five. But the relief granted should bear a rational relationship to the error established and be as practicable as possible. Although senior counsel for the applicant resisted the respondents’ characterisation of his argument, rejecting any notion that the applicant wishes to unwind the administrative process and require recommencement from the earliest stage, I am satisfied the most appropriately calibrated order is to remit the matter to the Panel.

23 It is relevant that the Panel has already considered the matter and the issue now requiring reconsideration is a confined one relating to the error I have found. For the avoidance of doubt, it concerns the consequences of applying s 269TAF(1) according to law in circumstances where the approach adopted by the relevant decision-makers has been found to be legally erroneous.

E COSTS

24 That leaves the question of costs.

25 The applicant submits that costs should follow the event. The respondents submit that, if relief is granted, there should be no order as to costs or, alternatively, that they should pay only a relatively modest proportion of the applicant’s costs.

26 The starting point is that the applicant has succeeded in establishing legal error and has obtained substantive relief. This is not, therefore, a case where the applicant should be deprived entirely of its costs. Having said that, the applicant’s success was limited to Ground Five.

27 It is true that a simple mechanical assessment of success by counting grounds is rarely an appropriate way of approaching the costs discretion. Nevertheless, it is impossible to ignore the reality of the way in which the litigation was conducted. A considerable amount of time, effort and expense was devoted by both parties to issues other than Ground Five. Much time turned out to be wasted in dealing with Ground One, which failed, and Grounds Two, Three and Four, as I observed above, were each contingent upon the success of Ground One and hence were not determined. The written submissions were extensive, and the oral argument was typically insightful but laborious.

28 This is, therefore, not a case where the ordinary rule that costs follow the event should be applied without qualification. Nor do I consider that justice would be done by requiring each party to bear its own costs. Such an approach would fail adequately to recognise the fact that the applicant succeeded in establishing jurisdictional error and obtained consequential relief.

29 It is trite that the discretion conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) is broad. It must be exercised judicially in a way that facilitates the case management objectives in Pt VB of the FCA Act, and in a manner that produces a fair and practical result. In undertaking that task, I have had regard to the nature of the success achieved by the applicant, the issue upon which it failed, the extent to which resources were devoted to that issue and contingent issues, and the reality that the relief ultimately granted is narrower than that originally sought.

30 Doing the best I can in circumstances where no apportionment can ever be mathematically precise, I consider that the appropriate order is that the respondents pay one third of the applicant’s costs of the proceeding. Such an order appropriately reflects the fact that the applicant achieved meaningful success and obtained relief, while also recognising that the bulk of the controversy litigated before the Court did not result in success for the applicant.

F CONCLUSION

31 Accordingly, I will make orders in accordance with those proposed by the respondents, and I will make an order for costs.

Associate:

Dated: 7 July 2026