Federal Court of Australia

Hyundai Steel Company v Minister for Industry and Innovation [2026] FCA 1137

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the application under r 31.02 of the Federal Court Rules 2011 (Cth) for an extension of time to bring the amended originating application filed on 3 July 2025 (originating application) against the second and third respondents be granted.

2.    Pursuant to r 1.34 of the Rules, the requirements of r 31.02 of the Rules be dispensed with such that the originating application be treated as an application for extension of time to bring the originating application against the second and third respondents.

3.    The originating application be dismissed.

4.    The applicant pay the respondents’ costs of the originating application, as agreed or taxed.

5.    Pursuant to s 37AF(1)(b)(iv) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), and on the ground that it is necessary to prevent prejudice to the proper administration of justice within the meaning of s 37AG(1)(a) of the FCA Act, the material identified as Confidential Information in Annexure A to these orders, Annexure A itself, and the annexure to the affidavit of Timothy John Webster sworn 15 December 2025:

(a)    are not to be published or disclosed to any person, other than:

(i)    any judge, employee or other personnel of this Court;

(ii)    the legal representatives and counsel for the applicant and respondents;

(iii)    support and administrative staff employed by persons referred to in sub-paragraph (ii) above who reasonably require access for the purpose of this proceeding;

(iv)    the respondents;

(v)    staff and contractors of the Department of Industry, Science and Resources and the first respondent; and

(vi)    the Court and staff of the Court; and

(b)    will not be open for public inspection or disclosed in open court or disclosed in the open part of any court transcript.

6.    Pursuant to s 37AJ of the FCA Act, Order 5 be effective for a period of five (5) years from the date of this order, or until further order.

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

REASONS FOR JUDGMENT

YOUNAN J:

INTRODUCTION

1    By an amended originating application filed on 3 July 2025, the applicant (Hyundai) seeks judicial review of four decisions made under the Customs Act 1901 (Cth) (Customs Act) concerning the continuation of anti-dumping measures imposed on exports of hot rolled structural steel sections (HRSS) into Australia from Japan, the Republic of Korea, Taiwan, and Thailand.

2    Those decisions are, in chronological order:

(1)    a decision by the third respondent (Commissioner) published in Anti-Dumping Commission Report No 637 (ADC Report 637) on 26 September 2024, recommending to the first respondent (Minister) that the anti-dumping measures continue after 20 November 2024;

(2)    a decision by the Minister adopting the Commissioner’s recommendation in ADC Report 637, made on 10 October 2024 and published by notice on 11 October 2024 (Previous Decision);

(3)    a decision by the second respondent (Panel) contained in Anti-Dumping Review Panel Report No 172 (ADRP Report 172) made on 5 February 2025 and published on 18 February 2025, recommending that the Minister affirm the Previous Decision; and

(4)    a decision of the Minister made on 17 February 2025 and published on 18 February 2025, affirming the Previous Decision in accordance with the Panel’s recommendation in ADRP Report 172 (Minister’s Decision).

3    The effect of these decisions is that the “dumping duties” on the applicant’s exports of HRSS to Australia, which have been in place since 20 November 2014, will continue for a further five years, with the rate of duty increased from 4.7% to 5.2%. The aspect of the dumping margin calculation with which the applicant takes issue for the purposes of the present application is the determination of the export price of the goods.

Grounds of review

4    The application raises seven grounds of review.

5    Grounds 1–3 relate to the Panel’s finding that the export price should be determined under s 269TAB(1)(a) of the Customs Act (rather than under s 269TAB(1)(c)).

6    Grounds 4–6 (including Ground 4A) challenge the respondents’ deduction of interim dumping duty (IDD) from the sale price in calculating the export price. Ground 4 pertains to that calculation for the purposes of s 269TAB(1)(a). Grounds 4A–6 pertain to the calculation for the purposes of s 269TAB(1)(c).

7    As the Panel found that the applicant’s claims failed irrespective of whether the export price is established pursuant s 269TAB(1)(a) or (1)(c) (ADRP Report 172, [208]), it was accepted that, for the applicant to succeed, it was necessary for it to establish one of: (a) Grounds 1–4; and (b) Grounds 4A–6. In other words, were the applicant to fail on each of Grounds 4A–6, it would not be necessary to consider any one of Grounds 1–4.

8    Furthermore, the applicant submitted that the broader significance of Ground 3, in terms of eligibility in applying for a duty assessment under s 269V of the Customs Act, may be a reason not to determine Ground 3 if it were not necessary to do so.

9    Given the potentially broader scope of s 269TAB(1)(c) in determining the export price, and the acceptance by the parties that unless error is found within the s 269TAB(1)(c) grounds the applicant’s case fails, it is appropriate to determine the grounds that pertain to that provision (i.e., Grounds 4A-6) in the first instance. In doing so, I assume, but do not determine, that s 269TAB(1)(c) applies (as it does “in any other case”), including in circumstances where the goods have been exported to Australia by the importer. In that way, I address the applicant’s case at its highest.

10    Given the complaint common to both Grounds 4 and 4A, I have determined those grounds together.

11    Given my rejection of Grounds 4 (including 4A) to 6, it is not necessary to determine Grounds 1–3. Further, I consider it appropriate not to do so in circumstances where my finding would have broader (and potentially adverse) implications for the applicant, and where the second and third respondents have reached different views in relation to the subject of Ground 3. That is not a matter I should attempt to resolve by way of obiter dicta. Given the disposition of Grounds 4–6, the resolution of Ground 3 will not resolve the dispute between the parties; even if the applicant is the “importer" for the purposes of s 269TAB, and subs (1)(c) applies, the applicant’s grounds in that respect fail.

12    In reaching that conclusion, I note that there is no factual dispute in relation to Grounds 1–3, only a question of the legal implications of accepted facts. Although the resolution of Ground 3 will determine which statutory provision applies, the answer to that question will not determine the outcome of the application: see Prince Alfred College v ADC (2016) 258 CLR 134 at [113] per French CJ, Kiefel, Bell, Keane and Nettle JJ; Massoud v Nationwide News Pty Ltd (2022) 109 NSWLR 468 at [35] per Leeming JA; PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312 at [15] per Leeming JA.

Proposed amendments

13    At the hearing, in reply, the applicant sought leave to further amend Grounds 4 and 4A (by adding a claim of failure to discharge the statutory task and a factual particular) and Grounds 5 and 6 (by adding a reference to s 269TAB(1)(a) in addition to s 269TAB(1)(c)). The application was faintly pressed in relation to Grounds 4 and 4A to meet the respondent’s complaint that reliance on Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, was not pleaded, although the applicant submitted that the point was not new and was contained in its written submissions (although not classified under Dranichnikov). The application in relation to Grounds 5 and 6 was made in order to encapsulate a point that was made by the applicant in chief regarding the same analysis that must apply in respect of s 269TAB(1)(a) and (1)(c).

14    The respondents opposed the amendment application at the late stage of the proceeding on various bases: viz., that they were not put on notice; they did not deal with the subject of the amendments in chief; it is unfair to allow the applicant to raise a matter in relation to which the respondents could put on evidence; and the applicant says that the amendments are not needed.

15    I refuse leave to (further) amend the application. To the extent that the amendments purport to be new matters, they were introduced at a late stage of the proceeding. I accept that the respondents did not have notice of them. Whether or not the respondents would have marshalled additional evidence in relation to the new claim, I accept that that option would have been available to the respondents. Furthermore, it is not evident that the amendments are required in order to address the crux of the applicant’s complaints in relation to both Grounds 4/4A and Grounds 5/6. To the extent that the proposed further amendments are not new claims, there is no utility in a grant of leave.

Extension of time

16    The applicant requests an extension of time under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and r 31.02 of the Federal Court Rules 2011 (Cth), to bring the application against the second and third respondents. The applicant also seeks an order under r 1.34 of the Rules that the requirements of r 31.02 be dispensed with such that the originating application be treated as an application for an extension of time.

17    As the originating application (prior to its amendment) was filed on 24 March 2025, Hyundai requires an extension of time in relation to any application for relief sought under the ADJR Act against the Commissioner and the Panel, whose decisions were made on 26 September 2024 and 5 February 2025, respectively: s 11(3) of the ADJR Act.

18    The applicant submits that there was no utility in challenging the decisions of the Commissioner and the Panel until the Minister had made his decision, and that the same relief is available and is sought under s 39B of the Judiciary Act 1903 (Cth), where no extension of time is required, relying on GM Holden Ltd v Commissioner of the Anti-Dumping Commission (2014) 225 FCR 222 at [6] per Mortimer J. Without accepting the correctness of the reasons of Mortimer J in GM Holden, the respondents do not oppose the orders sought.

19    I accept that there was little, if any, utility, in challenging the decisions of the second and third respondents before the first respondent had made his decisions. On that basis, it is appropriate that the extension sought be granted, and the requirements of r 31.02 be dispensed with.

Confidentiality orders

20    The applicant applies for suppression orders pursuant to s 37AF(1)(b)(iv) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), on the ground that it is necessary to prevent prejudice to the proper administration of justice within the meaning of s 37AG(1)(a) of the FCA Act, in relation to material identified as confidential information in Annexure A to the proposed orders, Annexure A itself, and the annexure to the affidavit of Timothy John Webster sworn 15 December 2025 (which affidavit supported the application). The applicant also provides written submissions in support of its application. The respondents neither consent to, nor oppose, the application.

21    I am satisfied that the information sought to be protected is of a nature that it is commercially sensitive, and that it was provided to the Commission and the Panel on the basis that it would be treated as confidential for the purposes of s 269ZJ of the Customs Act. I accept that the commercial sensitivity of that information may persist for at least 5 years. I will make the orders sought.

BACKGROUND

22    The applicant exports HRSS from the Republic of Korea (where it is based) and sells to Australian distributors who supply to various sectors of the Australian market, such as the construction and manufacturing industries.

23    On 20 November 2014, anti-dumping measures (in the form of a dumping duty notice under s 269TG of the Customs Act) were imposed in relation to HRSS exported from Japan, the Republic of Korea, Taiwan and Thailand. Those measures were continued in accordance with the then Commissioner’s recommendations in ADC Report 505 with effect from 20 November 2019, such that the notice was due to expire on 20 November 2024.

24    By notice published on 22 November 2023 (Anti-Dumping Notice No 2023/082), the Commissioner initiated an inquiry into the continuation of the anti-dumping measures. The inquiry period was between 1 October 2022 and 30 September 2023.

25    On 26 September 2024, the Commission published ADC Report 637, which recommended, inter alia, that the Minister continue the anti-dumping measures.

26    By notice published on 11 October 2024 (Anti-Dumping Notice No 2024/071), having accepted the recommendations in ADC Report 637, the Minister determined that the anti-dumping measures would continue unchanged after 20 November 2024, except in relation to the applicant, for whom the effective rate of duty would increase from 4.7% to 5.2%. The Minister’s Decision is a “reviewable decision” under s 269ZZA(1)(d) of the Customs Act.

27    On 11 November 2024, Hyundai applied to the Panel for a review of the Minister’s Decision. On 9 December 2024, the Panel gave notice under s 269ZZI of the Customs Act that it would conduct a review of the Previous Decision, on the basis that it was satisfied there were “reasonable grounds for the [Previous Decision] not being the correct or preferable decision”. The relevant ground was stated as the “[i]ncorrect and/or unreasonable determination of the export price”.

28    Pursuant to s 269ZZK(1) of the Customs Act, the Panel published ADRP Report 172 on 18 February 2025, recommending that the Minister affirm the Previous Decision. Relevantly, the Panel disagreed with the Commissioner’s finding in ADC Report 637 that Hyundai was the importer of HRSS for the purpose of determining the export price, and considered that the export price should be established pursuant to s 269TAB(1)(a) of the Customs Act. However, the Panel found that the export price would be the same whether determined under s 269TAB(1)(a) or (1)(c).

29    By notice published on 18 February 2025, having accepted the recommendations in ADRP Report 172, the Minister affirmed the Previous Decision.

Interim duty assessment

30    An IDD is payable on goods that are the subject of a notice under s 269TG(1) or (2) of the Customs Act “[p]ending final assessment of the dumping duty”: Customs Tariff (Anti-Dumping) Act 1975 (Cth) s 8(3) (Dumping Act). Under s 269V of the Customs Act, importers who have paid IDD on particular goods can apply to the Commissioner for an assessment by the Minister of the duty payable on those goods.

31    Hyundai made three such duty assessment applications (DA0256, DA0263 and DA0271) in relation to periods, being from 20 May 2022 to 19 November 2023, which overlapped with the ADC Report 637 inquiry period, being from 1 October 2022 to 30 September 2023. Only one of those assessments (DA0256) was finalised before ADC Report 637 was published.

LEGISLATIVE FRAMEWORK

The statutory scheme

32    Special provisions relating to dumping duties are located in Pt XVB of the Customs Act, which was introduced to give effect to Australia’s obligations under certain international trade agreements: see, e.g., GM Holden at [7]–[12] per Mortimer J; Pilkington (Australia) Ltd v Minister for Justice and Customs (2002) 127 FCR 92 at [22]–[28] per Mansfield, Conti and Allsop JJ.

33    Part XVB “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”: s 269SM(1) of the Customs Act.

Division 4 – Dumping duty assessment

34    Dumping duties on goods the subject of a notice issued under s 269TG(1) or (2) of the Customs Act are imposed and calculated by way of s 8 of the Dumping Act.

35    Relevantly, s 8(3) of the Dumping Act provides:

8    Dumping duties

…

(3)     Pending final assessment of the dumping duty payable on goods the subject of a notice under subsection 269TG(1) or (2) of the Customs Act, an interim dumping duty is payable on those goods.

36    Regarding Div 4 of Pt XVB of the Customs Act, s 269UA provides:

269UA    What this Division is about

This Division enables a reconciliation of interim duty, and final duty, payable under the Dumping Duty Act. The Division permits an importer who has paid interim duty on goods to apply, within specified time limits, for an assessment of duty payable on those goods. In particular, the Division provides that:

•    if the duty is less than the interim duty, the excess is to be refunded;

•    if the duty is more than the interim duty, the interim duty is treated as duty and the balance waived;

•    if the importer fails, within the time limits available, to seek an assessment of duty, the interim duty paid on the goods is taken to be duty actually payable.

37    As stated above at [30], importers can apply to the Commissioner for a duty assessment by the Minister under s 269V of the Customs Act. The application calls for statements of the applicant’s opinion as to various matters, including the normal value and export price of goods if an IDD has been imposed (s 269W(1)(c)) and the amount by which the applicant contends that the total IDD paid on the goods exceeds the total duty payable (s 269W(1)(e)), and the provision of evidence to support those opinions: s 269W(1A).

38    The Commissioner must provisionally calculate the amount of duty payable: s 269X(5)(b). On the basis of that calculation, the Commissioner must, “as soon as practicable” and within 155 days after an application is lodged, “or such longer period as the Minister allows” under s 269ZHI, examine the application in accordance with s 269X and decide what recommendation to make to the Minister under subs (6): s 269X(1).

39    The Minister may approve the Commissioner’s request of an extension of the 155-day period in s 269X if satisfied that it is reasonable to do so: s 269ZHI(1)(c) and (3). In elliptical fashion, the Minister may delegate that function under s 269ZHI to the Commissioner: s 269TAH(1)(a).

40    Having regard to recommendation from the Commissioner (or the Panel under s 269ZZU(2)), the Minister must order the repayment of the “overpaid” IDD in accordance with s 269Y.

Division 6A – Continuation of anti-dumping measures

41    Division 6A of Pt XVB of the Customs Act establishes a scheme concerning the continuation of anti-dumping measures: s 269ZHA. Where an application for continuation of measures is made in accordance with s 269ZHC, the Commissioner must consider the application and, if it is not rejected, notify the public and conduct a review: s 269ZHD.

42    Following its inquiry, the Commissioner must give the Minister a report containing recommendations as to the continuation of the anti-dumping measures, in accordance with s 269ZHF of the Customs Act. Section 269ZHF(2) provides:

269ZHF Report on application for continuation of anti-dumping measures

…

(2)    The Commissioner must not recommend that the Minister take steps to secure the continuation of the anti‑dumping measures unless the Commissioner is satisfied that the expiration of the measures would lead, or would be likely to lead, to a continuation of, or a recurrence of, the dumping or subsidisation and the material injury that the anti‑dumping measure is intended to prevent.

43    Under s 269ZHF(1)(a)(iii), the Commissioner can recommend that a notice “have effect in relation to a particular exporter… as if different variable factors had been ascertained”.

44    After considering the Commissioner’s report “and any other information that the Minister considers is relevant”, the Minister must publish their decision by notice in accordance with s 269ZHG(2): s 269ZHG(1). If the Minister decides the measures should continue, they are generally to remain in place for 5 years: s 269ZHG(5).

Division 9 – Review by the Panel

45    Division 9 of Pt XVB of the Customs Act sets out the procedures for review by the Panel of certain decisions by the Minister or the Commissioner: s 269ZW. A decision by the Minister to continue anti-dumping measures under s 269ZHG(1) is “reviewable” for the purpose of this division: s 269ZZA(1)(d).

46    An application for review must, inter alia, contain a statement setting out the grounds on which the applicant believes the reviewable decision is not the correct or preferable decision: s 269ZZE(2)(b).

47    The “reviewable grounds” are those grounds which the Panel is satisfied are reasonable for the reviewable decision not being the “correct or preferable decision”: s 269ZZG(5)(b)(i).

48    In accordance with s 269ZZG(5)(a) and (b), if an application for review is not rejected by the Panel, then:

269ZZG Rejection of application—failure to establish decision not the correct or preferable decision etc.

…

(5)

…

(c)     the Review Panel must accept the reviewable grounds and must conduct the review in relation to those grounds and no other grounds; and

(d)     the Review Panel must reject the non‑reviewable grounds.

49    Before conducting the review, the Panel must set out in a notice published on its website, inter alia, the grounds in relation to which the review is to be conducted: s 269ZZI.

50    If the Panel is required to determine any matter ordinarily required to be determined by the Minister, it must determine the matter in like manner as if it were the Minister and having regard to the considerations to which the Minister would be required to have regard: s 269ZZ(1). In conducting its review, the Panel is empowered to hold conferences for the purpose of seeking further information from appropriate persons: s 269ZZHA.

51    If an application is not rejected, the Panel must make a report, with reasons, recommending that the Minister affirm, or revoke and substitute, the reviewable decision: s 269ZZK(1) and (2). The Minister must, after receiving a report by the Panel under s 269ZZK(1), affirm or revoke and substitute the decision in accordance with s 269ZZM.

52    As set out above (at [9]), I have determined the grounds pertaining to s 269TAB(1)(c) (being Grounds 4A–6) in the first instance. Given the disposition of those grounds, it is not necessary nor desirable to determine Grounds 1–3.

DEDUCTION OF IDD IN DETERMINING EXPORT PRICE

Grounds 4 and 4A: Error in finding IDD must be deducted

Applicant’s submissions

53    The applicant claims that the Panel erred in determining that the IDD must be deducted in calculating the export price, whether determined under s 269TAB(1)(a) or (1)(c) of the Customs Act.

54    Relevantly, the methods for calculating the “export price” of any goods exported to Australia are contained in s 269TAB(1), which provides:

269TAB Export price

(1)     For the purposes of this Part, the export price of any goods exported to Australia is:

(a)     where:

(i)     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

(ii)     the purchase of the goods by the importer was an arms length transaction;

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; or

(b)    where:

(i)    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

(ii)     the purchase of the goods by the importer was not an arms length transaction; and

(iii)     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;

the price at which the goods were so sold by the importer to that person less the prescribed deductions; or

(c)     in any other case—the price that the Minister determines having regard to all the circumstances of the exportation.

55    The applicant contends that s 269TAB(1)(a) requires deduction of costs arising after exportation only where they are otherwise included in the invoice price. This construction is said to arise from the statements of Hill J in Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 462, and Powerlift (Nissan) Pty Ltd v Minister of State for Small Business, Construction and Customs (1993) 40 FCR 332 at 344 and 352.

56    In the applicant’s contracts, the IDD was expressly not included in the invoice price (“AD Duty is not included in the Seller’s DDP invoice value paid by the Buyer”). There was, therefore, in the applicant’s submission, no legal basis for deducting the IDD from the invoice price.

57    The applicant suggests that when this point was raised with the Panel, the Panel did not appear to understand it: ADRP Report 172, [104]. It appears, in the applicant’s submission, that the Panel “went astray” because it stated at [89] that a Delivered Duty Paid (DDP) price “is set at a level that contains the cost of the goods as well as other costs such as transport, insurance, customs clearance and duty payment”, despite a footnote noting that “[c]ertain costs elements can be excluded if arranged by the seller and buyer”. The applicant submits that this is what occurred, viz., the applicant’s contracts stated that dumping duty was not included in the invoice price.

58    The applicant claims that, while the Panel did not expressly address whether IDD must be deducted from the invoice price under s 269TAB(1)(c), to the extent that the Panel’s reasoning applies also to the operation of that provision, the Panel was in error.

59    The applicant again relies on the decision of Hill J in Powerlift at 352, as well as the statement of Thawley J in Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel (2022) 290 FCR 1 at [110], to support the notion that despite various methods of calculating the export price under s 269TAB, they are each broadly directed to the same end: finding a proper proxy for an arm’s length price. Thus, as the contracts do not include dumping duty in the invoice price, there is no reason to take that duty off the invoice price in arriving at a proper proxy for an arm’s length price.

60    The applicant contends that the Panel therefore made two errors in deducting the IDD:

(1)    it proceeded on an incorrect understanding of law, having regard to the purpose of the determination of the “export price”; and

(2)    it made a legally unreasonable decision, because its finding that IDD must be deducted was irrational or illogical having regard to the terms of the relevant contracts.

61    The applicant submits that the error in determining that the IDD must be deducted was material as, if IDD had been included, the export price would have been different.

Respondents’ submissions

62    The respondents claim that the deduction of IDD was consistent with s 269TAB(1)(a) and (1)(c) of the Customs Act, having regard to the text, context and purpose of those provisions and the commercial circumstances of the present case.

63    The respondents submit that the IDD represents a charge in respect of a matter arising after exportation, for the purposes of s 269TAB(1)(a); and accept that it is a circumstance of exportation, for the purposes of s 269TAB(1)(c).

64    Given the objective of s 269TAB(1)(a) to identify an accurate comparator for normal values, the respondents submit therefore that the deduction of duty best reflects the statutory purpose of Pt XVB because otherwise the sales price is misleading, and there ceases to be a fair comparison with the normal value. One generally fair comparator is the Free on Board (FOB) export price. The respondents submit that Powerlift and Enichem do not support any argument to the contrary.

65    In cases such as this where the IDD may be notionally excluded from the “price” by agreement between the parties, the respondents submit that it will not be the kind of “simple case” referred to by Hill J in Powerlift at 344. It is necessary to consider the aspects of the commercial dealings between the parties by reference to which the relevant “prices” and “charges” are struck, rather than identifying a figure on an invoice in isolation. There is no reason why particular contractual terms or invoice figures ought to exclusively control the ascertainment of the relevant price.

66    Acknowledging that s 269TAB(1)(c) confers a wider discretion to determine the export price (Powerlift at 352), and noting that the Panel did consider whether IDD ought to be deducted from the invoice price under s 269TAB(1)(c) (ADRP Report 172, [142]–[147]), the respondents contend that the provision expressly permits the decision maker to have regard to all circumstances.

Consideration

67    I accept that the Panel determined that the IDD paid by the applicant must be deducted in determining the export price under s 269TAB(1)(a) of the Customs Act.

68    However, there is no such finding in relation to s 269TAB(1)(c), which contains no such edict, but rather requires consideration of “all the circumstances of the exportation”. The Panel found that the applicant’s claim based on s 269TAB(1)(c) failed given its finding that the export price is established pursuant to s 269TAB(1)(a). The reference to an absence of discretion to include the IDD in the export price at [100] of ADRP Report 172 is a reference to the finding at [92]. It is not a separate finding in relation to s 269TAB(1)(c).

69    In relation to the counterfactual analysis at [122] et seq of ADRP Report 172, the Panel was addressing the issue whether the export price should include the IDD paid by the applicant, noting that the applicant accepted that a discretion exists (at [124]–[125]) and that there are no mandated deductions (at [143]).

70    In that regard, the premise of Ground 4A fails. The Panel did not determine that the IDD paid by the applicant must be deducted in determining the export price under s 269TAB(1)(c). The reference by the Panel (at [126]) to case law supporting “the removal of costs arising after exportation even though a discretion exists”, does not alter the analysis. A prescription need not be a mandate.

71    Nevertheless, I approach Ground 4A beneficially on the basis that the applicant is referring to the prescriptive nature of the Panel’s finding, i.e., “should” as a matter of the appropriate exercise of the discretion in s 269TAB(1)(c), such that the IDD “would still be deducted” whether proceeding under s 269TAB(1)(a) or (1)(c).

72    The applicant accepts that in applying s 269TAB(1)(a), the aspects of the commercial dealings between parties by reference to which the relevant “prices” and “charges” are struck may be considered, but says there is no suggestion that this is what the Panel did. However, the Panel expressly referred to the DDP terms on which the applicant sells to certain of its Australian customers throughout ADRP Report 172 (at [65], [70], [89], [103]), and in that regard did not simply identify a figure on an invoice in isolation of its context.

73    The statutory purpose of Pt XVB is as set out in s 269SM(1) (see above at [33]). A core element of this purpose is the determination of normal value for goods and the export price for similar goods. That is, fair comparison of those values is at the heart of the regime. As the Panel observed at [40] of ADRP Report 172, ordinarily the export price is set at a FOB level to enable its comparison with the normal value. Doing so requires adjustment of the sale price by deducting the value of the post-exportation expense borne by the exporter. Deducting the IDD enables the comparison of prices at FOB level, and is therefore consistent with the statutory purpose. It prevents an exporter from artificially inflating the export price or disguising the sale price as an export price. That would otherwise undermine this purpose by rendering the duty of no effect in the Australian market.

74    This is why, as submitted by the respondents, the text of s 269TAB(1)(a) supports a construction wherein the IDD represents a charge in respect of a matter arising after exportation.

75    Ultimately, the contract cannot govern the task of determining the export price. If that were allowed, it would run contrary to the purpose of the provision by undermining the reliability of the comparison of normal value with export price. In this regard, the applicant accepts that, in some cases, the contract may not be a reliable indicator of the price. However, the applicant submits that the Panel did not make any finding that the price set out in the relevant contracts was unreliable and instead was confused about the contracts.

76    As adverted to by the respondents in oral submissions, the confusion referred to by the Panel was caused by the somewhat contradictory nature of the applicant’s submissions on this point. There is a tension that arises on the applicant’s suggestion that its price does not include the IDD, when necessarily the invoice price is set on the premise that the applicants pay the duty. The Panel’s acceptance that costs elements can be excluded if arranged by the seller and buyer does not resolve that tension. The applicant has made duty assessment applications, and has an obligation to pay the IDD. The corollary of this obligation is that the price for the contract includes the value of the duty paid.

77    There is force in the respondents’ submission that, if this were not the case (i.e., the IDD were not included in the price), the payment of the duty would be a separate benefit received by the importer, such that the transaction would cease to be at arm’s length. In that instance, the same deduction (of the IDD under s 269TAB(1)(a)) would occur under s 269TAB(1)(b).

78    Notwithstanding the “wider discretion” to determine the export price conferred by the terms of s 269TAB(1)(c) (Powerlift at 352), the applicant’s complaint about the Panel’s reasoning again concerns the deduction of the IDD despite the terms of the relevant contracts.

79    Under that provision, the price must be determined having regard to “all circumstances of the exportation”. Accepting the applicant’s summary of the authorities, while there are various methods of calculating the export price in s 269TAB, they are broadly each directed to finding a proper proxy for an arm’s length price. That being said, there is no reason why particular contractual terms ought to dictate that price. And there is good reason for it not to, as explained above at [74]. The exercise of calculating an arm’s length price is not circumscribed by reference to those contractual terms.

80    As the respondents submit, the findings of Hill J in Powerlift and Enichem do not support any argument to the contrary. These decisions do not stand as authority for the proposition recited above at [55]. The “simple case” is not every case. The statement in Powerlift at 344 is more aspirational in nature; it is not a statement of general prescription.

81    The Panel did not fall into error. The Panel correctly understood the purpose of s 269TAB(1)(c) and had regard to “all the circumstances of the exportation” in determining that the IDD should be deducted in calculating the export price.

82    Accordingly, Grounds 4 and 4A must fail.

Ground 5: Failure to have regard to refund of IDD

Applicant’s submissions

83    The applicant complains that a deduction was made on account of IDD without taking into account the fact that part of the IDD would be refunded, contrary to the edict in s 269TAB(1)(c) that regard must be had to “all the circumstances of exportation”, wherein those circumstances are mandatory relevant considerations. The fact that an importer will receive a refund of IDD, and will ultimately pay less in duty, is said to “plainly” be one such circumstance. Accordingly, the applicant submits that the Commission erred, having concluded that IDD paid is a circumstance of exportation (ADC Report 637, p 47), in its failure to have treated the fact that an importer will receive a refund of IDD as another such circumstance.

84    As stated above at [31], Hyundai made three duty assessment applications that “overlapped” with the period the subject of the Commissioner’s inquiry (DA0256, DA0263 and DA0271): ADC Report 637, p 47. While the Commission had regard to the final duty payable from one of these (DA0256), which was finalised before publication of the report, it considered that it was premature to account for what the applicant described as “likely duty refunds” in respect of the others: ADC Report 637, p 48. The applicant submits that the Commissioner was or ought to have been aware that the final duty payable would be less than the IDD that had been paid.

85    The applicant states that the Commission was in possession of verified information such that the “likely” final duty payable for the shipments covered by the duty assessment was readily quantifiable or at least could be estimated on a preliminary basis (indeed the applicant requested that this be done). In failing to take into account that there would be a refund of some of the IDD paid, the Commissioner and the Panel failed to take into account one of the “circumstances of exportation” to which the Minister had to have regard. Such an error was material, as it could have affected the assessment of the “export price”.

Respondents’ submissions

86    The respondents submit that this ground should be rejected on the basis that: (a) whether Hyundai would receive a refund of IDD paid as a circumstance of exportation was not a mandatory relevant consideration under s 269TAB(1)(c); and (b) in reaching its determination of the export price, the Commission and the Panel considered and rejected Hyundai’s submissions regarding the likely refund of IDD or final duty payable as, respectively, premature and having “no legal standing” (ADC Report 637, p 48; ADRP Report 172, [111], [112(a)]).

87    The respondents submit that the obligation to have regard to all the circumstances of exportation is an obligation merely to consider those circumstances, subject to the information being reliable (Powerlift at 352), rather than to treat them as fundamental elements in the decision-making process.

88    It is not in contention that a refund of IDD following a reassessment application may be a relevant “circumstance… of the exportation” for the purpose of s 269TAB(1)(c). However, the respondents submit that the applicant proceeds on the erroneous premise that there “would be” a refund of some of the IDD paid in respect of the goods.

89    Furthermore, the respondents submit that the contention that the Commissioner was aware, or ought to have been aware, that the final duty payable would be less than the IDD paid, such that the Commissioner could have undertaken “preliminary calculations”, should be rejected given that the duty assessments (DA0263 and DA 0271) had not been undertaken and there was no legal obligation for such an analysis to be conducted.

Consideration

90    There are two contentious aspects of the construction of s 269TAB(1)(c). The first is the meaning of the term “having regard to”. The second is the identification of “all the circumstances of the exportation”.

91    The statutory requirement to “have regard to” a matter has been considered previously, albeit in different contexts: see, e.g., R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J; Commissioner of Police (NSW) v Industrial Relations Commission (2009) 185 IR 458 at [73] per Spigelman CJ, Macfarlan and Young JJA agreeing; Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [54], [57] and [58] per Sackville J.

92    In Singh, Sackville J considered s 54(1) of the Migration Act 1958 (Cth), which requires that:

The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all the information in the application.

93    It is to be observed that the relevant term in Singh is expressed as a positive mandate (“must …have regard to”), rather than passively (“having regard to”). It is also to be observed that the “regard” in s 54(1) of the Migration Act is to be had in relation to something that is identified, the scope of which is circumscribed. These points of distinction nevertheless aid the construction of s 269TAB(1)(c) advanced by the respondents, and which I prefer.

94    Justice Sackville considered that, while that expression was capable of different meanings depending on the context – it may require the decision-maker to take the matters into account and “give weight to them as a fundamental element in making his determination”, or it may require the decision-maker merely to consider those factors, rather than treat them as fundamental elements – that section did not require the Minister to take into account the information in the application as a fundamental element in the decision-making process (at [57]). This was because:

It could hardly have been contemplated by the drafters that every piece of information selected for mention by an applicant, no matter how marginal its relevance to the issues to be determined, must be treated by the decision-maker as a “fundamental element” in making the determination. The ordinary meaning of the words in s 54(1) does not suggest otherwise. Moreover, such a construction would render the decision-making process unworkable…

95    Justice Sackville considered that the expression suggested a process of consideration of information; i.e., something more is needed than simply being aware of the information in the application: [58]. Both parties consider that Singh is consistent with their submissions on the proper construction of the provision. It is difficult to see how this supports the applicant’s construction. The submission that Sackville J held that “all the information” had to be considered is an oversimplification of his Honour’s finding.

96    I agree with the respondents’ preferred construction of s 269TAB(1)(c): viz., the provision permits the Minister to make a determination of the export price, having regard to the circumstances (of the exportation) they consider to be relevant. In this context, the consideration of relevance is a broad one, encompassing notions of materiality and reliability. That consideration is an assessment of the extent to which the circumstances are of assistance in determining the export price. The imperative or qualification that the Minister should determine the price “having regard to” all the circumstances of the exportation dictates a process of consideration, but not its outcome. On the applicant’s preferred construction, once a “circumstance of the exportation” is identified, the matter ends there – i.e., the circumstance must be taken into account. In my view, that is not the end of the determination of export price under s 269TAB(1)(c). The breadth of the determination in s 269TAB(1)(c) is not a mandate to consider all and every circumstance of exportation that answers that description, irrespective of an assessment of the relevance of the circumstance under consideration. This construction is supported by two factors. First, the reference (in “having regard”) to a consideration of unspecified scope. Second, the rational relationship between the circumstance under consideration and the determination of the export price (i.e., between the means and object of assessment) permits such an enquiry.

97    This construction is consistent with previous statements of the Full Court of this Court in Changshu Longte Grinding Ball Company Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science and Others (2019) 270 FCR 244 at [93], which was concerned with the determination of the normal value of goods under s 269TAC(2) of the Customs Act. The Court considered that, as comparative advantages and disadvantages generally are not mandatory relevant considerations, so too are specific advantages and disadvantages also not mandatory relevant considerations. The respondents contend that this has broad equivalence to the present case where the applicant is suggesting that a particular posited circumstance – viz., the prospective refund of the IDD – was not considered by the Panel in undertaking its function. As the Court stated (at [93(5)(b)]):

…it is one thing for a statute to imply that regard must be had to a particular subject matter; it is quite another for it to imply that regard must be had to all matters which fall within that subject matter. (emphasis in original)

98    The applicant submits that the decisions cited by the respondents are “very far away” from the present case, but it is difficult to cavil with the logic of the court’s proposition in Changshu at [93]. In my view, there is no such implication in s 269TAB(1)(c). This is by reference to two qualifications: first, relevance (addressed at [96] above); and second, the scope of enquiry.

99    I did not understand the applicant to contend that there was a duty of enquiry on the part of the Minister, i.e., an affirmative duty to examine the possibility of any (and therefore every) circumstance attending the exportation. In any event, such a duty receives no support from the text of the provision. The use of passive language coupled with the reference to “all the circumstances” suggests the scope of permissible enquiry, i.e., the outer limit, rather than a positive mandate to attain that limit in each and every case.

100    As authority for the proposition that all circumstances of the exportation must be considered, the applicant sought to rely on the decision of the New South Wales Court of Appeal in Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc v MACH Energy Australia Pty Ltd (2025) 263 LGERA 264. This decision related to legislation requiring a decision-maker to consider “likely impacts” of development and therefore an obligation requiring the decision-maker to address the potentially adverse effects of climate change in the locality. This is of no assistance to the applicant in circumstances where the legislation in that case actively required the decision-maker’s consideration of specified matters. Further, the relevant wording in Denman was that the authority “is to take into consideration such of the following matters as are of relevance…” (emphasis added). This does not promote the applicant’s preferred construction.

101    This is not a case where the Commissioner was not aware of, or ignored, the circumstance in question. What is in contest is the manner of its consideration.

102    As regards the consideration given to the IDD refund in this case, the applicant submits that the premise that there “would be” a refund of some of the IDD is not erroneous, as contended by the respondents, despite the fact that two of the three assessments were only at the preliminary decision stage at the time of the decision. The point is that the premise – viz., that there “would be” a refund – could not be substantiated at the point in time of the relevant decisions, such that the premise was at least presumptuous and at most erroneous.

103    This is underscored by the way in which the applicant articulated the prospect of receiving the said refund. The applicant variously submitted that “there would be a refund of some of the IDD paid”, and otherwise that the refunds were “likely” (and, in response to the respondent’s submissions, that such “likely” refunds “may have resulted from duty assessments”). The duty assessment process outlined above (at [37]–[40]) makes plain why this is so; it is a prediction.

104    That the Commission had the necessary information to assess the dumping duty on a preliminary basis, and make a finding about the likelihood of a refund, does not take the applicant far; the argument contains its own retort. The applicant suggests that the Commission (and the Panel) did not exercise their functions at all, and in effect determined that Hyundai would not receive any refund. I do not accept this is what they did in terms or effect. Considering that there may be a refund, but refusing to speculate as to the amount, notwithstanding that a preliminary assessment is available, is not a failure to perform the statutory task. The Commission may not be precluded from hypothesising in certain circumstances (see Continuation Inquiry 504 (CON 504)), but that does not mean that it must hypothesise.

105    In circumstances where the Minister makes the ultimate decision with respect to a duty assessment upon the recommendation of the Commissioner under the provisions governing the duty assessment process in Div 4 of Pt XVB of the Customs Act, and “the Minister will take into account all the circumstances…subject to that information being unreliable or there being insufficient information supplied about it” (Powerlift at 352), it was appropriate for the Panel to have proceeded on the basis that it would not determine the duty repayment by reference to a notional calculation. This is what I take the Panel to mean at [111] by reference to the un-finalised duty assessment amounts having “no legal standing”.

106    The applicant submits that in having regard to “likely” refunds of IDD, the Commissioner would be performing their statutory task – viz., having regard to all circumstances of the exportation. In that regard, the applicant does not accept that it is pre-empting the duty assessment. Nevertheless, even if is accepted that a hypothetical matter (being the amount of the refund) is a circumstance of exportation, in this case the respondents had regard to it. They had regard to it in the relevant sense of having considered its relevance, but ultimately dismissed it as unreliable. In the applicant’s parlance, this would be the failure to “take into account” one of the circumstances of the exportation. In the context of s 269TAB(1)(c), the two (different) standards should not be confused.

107    Thus, Ground 5 must fail.

Ground 6: Determining that IDD should be deducted was legally unreasonable

Applicant’s submissions

108    The applicant claims that the refusal to have regard to likely refunds of IDD resulting from duty assessments DA0263 and DA0271 was legally unreasonable, in that it lacked an evident and intelligible justification, for three reasons.

109    First, the Commissioner was in possession of verified information that would have enabled him to undertake preliminary calculations as to the final duty payable before completion of ADC Report 637.

110    Second, the Commissioner had previously used un-finalised duty assessments in CON 504 on the basis that the likely final duties payable based on a preliminary assessment should be taken into account in determining export price.

111    Third, DA0263 was unfinalised at the time of ADC Report 637 only because the Commission had decided to grant an extension. The extension having been granted, it was then legally unreasonable for the Commissioner not to take into account the likely refund of IDD when, if the extension had not been granted, the actual refund of IDD would have been known.

Respondents’ submissions

112    The respondents submit that none of the respondents acted in a legally unreasonable manner by declining to have regard to “likely” refunds of IDD which may have resulted from duty assessments DA0263 and DA0271.

113    First, a preliminary assessment would run the risk of (alleged or actual) error in the event that the preliminary calculation and the actual duty assessment differed.

114    Second, noting the wide discretion that s 269TAB(1)(c) confers, the Commission provided a cogent basis on which the approach in CON 504 was distinguishable from the present case, viz., that the preliminary positive determination on the duty assessment which had been made at the date of publication of the Continuation Inquiry was not subject to any review to the Panel. The proposition put by the respondents is that irrationality or unreasonableness is not made out merely by pointing to different reasoning, and the drawing of different inferences in other contexts.

115    Third, the applicant’s submission in substance invites the Court to read words into Part XVB to the effect that, where there is an extant duty assessment, the circumstances relevant to the calculation of export price under s 269TAB(1)(c) must include a “preliminary calculation” of any “likely” refund of duty. This would undermine the power to seek an extension for finalising a duty assessment.

116    The respondents also submit that it was not unreasonable for the Commissioner to complete ADC Report 637 when he granted an extension for DA0263, noting that the report affected the interests of importers from Japan, the Republic of Korea, Taiwan and Thailand (other than Hyundai).

Consideration

117    The applicant’s submissions on reasonableness were directed to the process by which the decision was made (although the third reason stated at [111] above may be seen to implicate the outcome in the context of an extension of time that delayed the process). The respondents accept that, in conducting their statutory functions under Pt XVB of the Customs Act, they were required to act reasonably, and that a decision-maker may fall into error by adopting a process that is legally unreasonable.

118    It is trite to say that the standard of legal unreasonableness is a high bar. Nettle and Gordon JJ explained in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [84] that:

… legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power. (emphasis in original)

119    This reflects the principle that it is “insufficient” to establish legal unreasonableness if the circumstances are such that “reasonable minds may reach different conclusions”: Changshu Longte Grinding Ball Co., Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science (No 2) [2018] FCA 1135 at [103] per Griffiths J, citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] per French CJ. It follows then that “[i]rrationality or unreasonableness is not made out merely by pointing to different reasoning, and the drawing of different inferences, as between the [Panel] on the one hand and the Minister on the other”: Rio Tinto Aluminium (Bell Bay) Ltd v Assistant Minister for Science and Parliamentary Secretary [2016] FCA 681 at [83] per Robertson J; WABL v Minister for Immigration and Multicultural Affairs [2002] FCAFC 267 at [14] and [17].

120    Considered this way, none of the respondents acted in a legally unreasonable manner. Ultimately, the applicant’s submissions regarding Ground 6 do not rise above the proposition that the respondents could have taken into account un-finalised IDD assessments, but did not. The reasons provided by the Commission and the Panel for the approach taken were intelligible (whether or not cogent): ADC Report 637, pp 47–48; ADRP Report 172, [112(c)], [155]–[158]. That is, the reasons demonstrated a justification for the exercise of power.

121    The applicant’s submissions do not gainsay that proposition.

122    First, that the Commissioner could have undertaken preliminary calculations, is addressed by my findings in relation to Ground 5. That criticism, in any event, does not undermine the reasoning of the Panel in its reliance on the status quo.

123    Second, the applicant submits that the Panel did not provide a reason for rejecting the applicant’s response to the “cogent basis” relied upon by the Commission for taking a different approach to CON 504. The applicant argues that the respondents did not “engage with” its submissions to the Panel (those matters referred to at ADRP Report 172, [150]–[151]). However, in circumstances where the Commission indicated that the scenario was different in CON 504 (ADRP Report 172, [149]), it was a proper exercise of the wide discretion granted by s 269TAB(1)(c) for the Panel to engage with (ADRP Report 172, [155]), but not accept, the submissions of the applicant. The Panel stated that it is not its role to comment on the manner in which the Commission conducts its enquiries (ADRP Report 172, [153]), but that in its opinion, un-finalised duty assessment amounts are not reliable figures: ADRP Report 172, [155]–[156]. That is an inherently logical proposition, although its cogency may be contested by the applicant (in circumstances where such amounts have been taken into account in other inquiries). As stated above, irrationality or unreasonableness is not made out merely by pointing to the availability of different reasoning: Rio Tinto at [83].

124    The applicant submits that the fact that there was a possibility that the position may change does not mean that the Commissioner could simply proceed on the basis that there would be no refund at all. However, that is not the basis on which the Commissioner proceeded. The Commissioner considered it to be “premature” to account for what the applicant described as “likely duty refunds” at the time of ADC Report 637: p 48. The applicant does not substantiate why it is irrational to consider but discount a factor based on its speculative or hypothetical nature. As stated above at [105], it was rational for the Panel to have proceeded on the basis that it would not determine the duty repayment by reference to a notional calculation.

125    Third, the applicant submits that it was unreasonable for the Commissioner not to have regard to the likely refund of IDD from DA0263 when it was only unfinalised at the time of ADC Report 637 because the Commissioner had decided to grant an extension. It is not apparent how that circumstance (which is in substance a complaint about delay in another duty assessment effecting a disadvantage on the applicant in the present inquiry) makes the decision legally unreasonable.

126    Further, the respondents make a compelling point: viz., if the failure to consider a hypothetical is a failure to perform the statutory task, then the Commission is obliged to so consider it (when there is available material to make a preliminary assessment), in circumstances where it is portrayed by the applicant as a circumstance of exportation under s 269TAB(1)(c). The applicant resists this characterisation of its submission, but it is its effect.

127    The utility of such a preliminary calculation in the determination of export price is not self-evident – i.e., not as a universal proposition. The circumstance in which the Commissioner had approved an extension of time in the context of a different duty assessment does not render a decision given on the evidence available at the relevant time illogical, irrational or unreasonable.

128    Accordingly, Ground 6 must fail.

Conclusion

129    The applicant has failed to establish any of Grounds 4A–6 of its amended originating application. As the applicant accepted that it must establish one of Grounds 1–4 and Grounds 4A–6 in order to succeed, the application should be dismissed, with costs.

Associate:

Dated:    14 August 2026