Re Application of Writs of Certiorari, Prohibition and of An Injunction Against Thomas Plunkett Hayes, Comptroller-General of Customs; Petersville Industries Limited and Mccain Foods (Australia) Pty Limited Ex Parte: J Wattie Canneries Limited [1986] FCA 399 (18 November 1986)

FEDERAL COURT OF AUSTRALIA

Re: APPLICATION FOR WRITS OF CERTIORARI, PROHIBITION AND FOR AN INJUNCTION
AGAINST THOMAS PLUNKETT HAYES, COMPTROLLER-GENERAL OF CUSTOMS; PETERSVILLE
INDUSTRIES LIMITED and McCAIN FOODS (AUSTRALIA) PTY. LIMITED
Ex Parte: J. WATTIE CANNERIES LIMITED
No. G399 of 1986
Customs Duty

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Customs Duty - Preliminary finding of Customs - whether anti-dumping duty "may be payable" - Customs Act 1901 s.42 - error of law - natural justice - improper purpose.

Customs Act 1901, s.42

Customs Tariff (Anti-Dumping) Act 1975

Tasman Timber Ltd. v. Minister for Industry & Commerce (1983) 46 A.L.R. 149

Feltex Reidrubber Ltd. v. Minister for Industry & Commerce (1983) 46 A.L.R. 171

GTE (Australia) Pty. Limited v. Brown, 31 October 1986, Burchett J., unreported.

Minister for Aboriginal Affairs v. Peko Wallsend Ltd. (1986) 66 A.L.R. 299

Puhlofer v. Hillingdon London Borough Council [1986] UKHL 1; (1986) A.C. 484

HEARING

SYDNEY
18:11:1986

Counsel and Solicitors for First respondent: Mr. A. Robertson instructed by Australian Government Solicitor

Counsel and Solicitors for Second and Third respondents: Mr. C. Sweeney instructed by McDonell Moffitt Dowling Taylor.

Counsel and Solicitors for Prosecutor: Mr. G. Flick instructed by Freehill Hollingdale & Page.

ORDER

The application be dismissed.

The Order Nisi be discharged.

The prosecutor pay the costs of the first respondent.

Liberty reserved to the second and third respondents to apply for costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

J. Wattie Canneries Limited, the prosecutor, has applied, pursuant to s.39B of the Judiciary Act 1903, for the issue of writs of certiorari, prohibition and for an injunction against the first respondent, Thomas Plunkett Hayes, Comptroller-General of Customs. In its application, the prosecutor challenges a preliminary finding made by the first respondent on 21 August 1986 pursuant to s.42 of the Customs Act 1901 whereby the first respondent sought to impose certain cash securities upon the prosecutor. By s.42(1) of the Customs Act, the Customs have the right to require securities for certain purposes. This right includes the right to require securities "for payment of any duty that may be payable on goods under the Customs Tariff (Anti-Dumping) Act, 1975". (s.42(1B)). The general legislative scheme was described by Lockhart J. in Tasman Timber Ltd. v. Minister for Industry and Commerce (1983) 46 ALR 149 at pp 151-155, by Sheppard J. in Feltex Reidrubber Ltd. v. Minister for Industry and Commerce (1983) 46 ALR 171 at pp 174-178, pp 180-183, and by Burchett J. in GTE (Australia) Pty. Limited v. Brown, 31 October 1986, at pp 1-7, unreported. Neither Lockhart J nor Sheppard J. was concerned with the operation of s.42(1B) which was not in force until 24 November 1982 (see 46 A.L.R. at pp.178-9).

2. The prosecutor claims that the preliminary finding was made in breach of the rules of natural justice and was made in disregard of procedures required by Customs Tariff (Anti-Dumping) Act to be observed in that connection. The prosecutor further contends that the preliminary finding was in excess of the jurisdiction conferred upon the first respondent by the Customs Act, was not authorised by the Customs Act, was an improper exercise of the powers conferred by the Customs Act, was ultra vires, involved an error of law and was made on the basis of material providing no evidence for the decision in fact reached. An order quashing the first respondent's decision is sought.

3. The prosecutor is the largest processor of frozen, canned and dehydrated vegetables in New Zealand, as well as the major processor and exporter of frozen peas. New Zealand and the United States of America are the two main sources of Australia's imported frozen peas. The origins of the present dispute are conveniently summarised in the prosecutor's points of claim:

"3. Two Australian companies involved in the
processing of frozen foods are the
Edgell-Birds Eye Division of Petersville
Industries Ltd. and McCain Foods
(Australia) Pty. Ltd.

4. In or about September 1985 the Edgell-Birds
Eye Division of Petersville Industries Ltd.
and McCain Foods (Australia) Pty. Ltd.
lodged a complaint with the Australian
Customs Service alleging that the
Prosecutor was exporting frozen peas from
New Zealand at dumped prices and had
thereby caused and threatened material
injury to the Australian industry.

5. Australian Customs Notice No. 86/14 of 5
February 1986 advised the notification of
enquiries to reach a preliminary finding on
the complaint referred to in paragraph 4
above.

6. The Prosecutor has made a number of
submissions to the respondent pursuant to
the enquiry referred to in paragraph 5
above.

...

7. In addition to written submissions
forwarded by the Prosecutor to the
Respondent, officers of the Prosecutor and
the Respondent attended meetings to discuss
aspects of the complaint....

8. On 21 August 1986 the Respondent by way of
Australian Customs Notice No. 86/211 made a
preliminary finding adverse to the
interests of the Prosecutor and thereby
imposed cash securities upon the
importation by the Prosecutor of goods
under enquiry entered for home consumption
after the date of the said Notice."

(This notice, which is central to the present dispute, is annexed to these reasons).

4. The points of claim further allege that the first respondent failed to carry out the comparison which he was as a matter of law obliged to carry out between the normal value of the goods enquired into and the material injury caused by those goods as at the date of the values so determined. Alternatively, it is said, the first respondent misconceived the nature of the enquiry that he was bound in law to conduct by reason of an incorrect identification of the goods to be enquired into. It is further claimed that the first respondent, in conducting the said enquiries, owed a duty to the prosecutor to make certain enquiries and to accord the prosecutor an opportunity of being heard and to be treated fairly in accordance with the rules of natural justice and failed to accord to the prosecutor that opportunity. Finally, the prosecutor claims that, in imposing cash securities, the first respondent exceeded the powers conferred upon him by s.42 of the Customs Act in that the securities were imposed for an improper purpose.

5. To understand the respective contentions of the parties, it is necessary to give some details of the history of the matter. In recounting these events, I note that the parties are agreed that there is no real dispute about the primary facts. This is not surprising since the prosecutor's case is based upon the documentation before the Customs. The real area of dispute arises from the inferences to be drawn from, or more precisely, the proper opinion or judgment to be given or made, on the primary facts. The first respondent says and the prosecutor denies, that those facts justify the conclusion that "duty may be payable" for the purposes of s.42(1B) of the Customs Act.

6. Upon receipt of the complaint lodged by Edgell and McCain, Customs commenced its enquiries. In December 1985, Mr. C.E. Ryan, Chief Inspector in the Dumping Operations Branch of the Dumping Division made enquiries of the New Zealand High Commission. In February 1986, Mr. Ryan informed a number of exporters and importers of frozen peas, including the prosecutor, of Australian Customs Notice No. 86/14 and sought their comments. At the same time, Mr. M.J. Doyle, Senior Inspector, Dumping Operations, informed Edgell and McCain of the Customs Notice. Mr. Doyle then discussed the complaint on a confidential basis with Gardenland Frozen Foods Pty. Ltd., a Victorian company which had recently commenced production of frozen vegetables, including peas. Messrs Ryan and Doyle compiled some statistics on the Australian industry's production and the Australian market, using confidential information extracted from the Customs' commercial database system. Mr. Doyle then attended upon McCain to discuss further details of its complaint on a confidential basis. On 25 February, Nafco Partners Pty. Ltd., Government Relations consultants representing the prosecutor, wrote to Mr. Doyle outlining its response to the complaint and denying any dumping. Later in that month, Mr. Doyle attended upon Edgells to discuss further details of its complaint. On 6 March, Mr. Doyle received a telex from McCain giving confidential details of its costs of making and selling frozen peas. On 5, 6 and 13 March, Messrs Ryan and Doyle attended upon the prosecutor to discuss, on a confidential basis, its export prices. On 6 March, Messrs. Ryan and Doyle obtained from Woolworths Ltd. confidential information with respect to its buying policies in relation to frozen peas and with respect to its understanding of the frozen pea market generally in Australia. On 7 March, Messrs. Ryan and Doyle made further enquiries of Edgell. On 19 March, ITC (Australia), industry and trade consultants representing Edgell, provided Mr. Doyle with additional confidential information on the question of its client's claims of material injury suffered as a result of "dumped and subsidised" imports of frozen peas from New Zealand. On 18, 19 and 20 March, Nafco provided Mr. Doyle with three lengthy submissions, much of it confidential, denying any dumping or subsidisation and dealing specifically with freight, export price, "normal value", injury and "causal link". Customs then sought the views of ITC on a number of the claims made by Nafco. On 24 March, Mr. Ryan spoke confidentially with a representative of the New South Wales Contract Board about its 1985-7 contract for the supply of frozen peas. On 25 March, Nafco supplied Customs with further confidential information. On 26 March, ITC responded to the queries put to it by Customs. On 27 March, ITC supplied details of payments made to McCain under the Tasmanian Freight Equalisation Scheme ("TFES"). On 3 April, McCain provided, confidentially, its production data. On 4 April, an officer of the New Zealand High Commission discussed the complaint with Mr. Ryan on a confidential basis. On that day, ITC provided Mr. Doyle with details of margins claimed by Edgell and McCain of their "non-suppressed" prices. On 10 April, Nafco made a further submission on export price, "normal value" and "material injury". On 11 April, Mr. Ryan received details of TFES from the Department of Transport. On 11 April, Mr. Ryan prepared an "Analysis of Industry Arguments - Injury - Price Suppression". The document ("Attachment D" - part of a confidential exhibit, Ex. "C.E.R.25") was the subject of much attention in argument. In it, Mr. Ryan sought to verify Edgell's claims of price suppression. The claims were documented and Mr. Ryan interviewed, or attempted to interview, a number of the retailers mentioned in Edgell's material. He concluded that Edgell's claims should be upheld since his enquiries indicated that, in order to compete with the prosecutor's frozen peas, Edgell's had reduced their prices for a number of retailers and had offered a "competitive allowance" to another retailer. Mr. Ryan stated:

"It is apparent that verified material injury
caused through price depression/lost sales as a
consequence of JWC exports amounts to over (a
significant stated amount). The vast majority
of the injury covers the period 1 June 1985 to
31 March 1986. It should be noted that the
presence of @new brand' Watties Vegetables and
JWCA was visibly in the marketplace from
May-June 1985."

7. On 15 April, ITC expressed concern that Customs' inquiry might not include bulk packs of frozen peas. On 17 April, in response to questions asked by Mr. Ryan, ITC supplied Customs with further information on bulk packs, "non-suppressed" prices and "subsidy". On 18 April, ITC made a submission to Customs on the impact upon the prosecutor of the New Zealand Export Market Development Taxation Incentive ("EMDTI"). At this time, ITC also provided Customs with confidential material with respect to Edgell's and McCain's "non-suppressed" prices and in relation to the "normal value" and export price of bulk packs of frozen peas exported from New Zealand to Australia. On 21 April, Messrs. Ryan and Doyle and other representatives of Customs met with officers of ITC to discuss freight dumping. On 22 April ITC gave Customs its understanding of the subsidy question and Customs passed this material on to the New Zealand High Commission for its consideration. On 24 April, ITC provided Customs with confidential particulars of discounts allowed by Edgell and McCain. On 30 April, Mr. Ryan informed Nafco that the inquiry was to extend to bulk packs. On that date, ITC provided Customs with confidential information with respect to price increases sought by Tasmanian growers. On that date, Mr. Ryan sought further information from Nafco concerning the allocation of EMDTI payments. On 7 May, Nafco made confidential submissions to Mr. Ryan with respect to his calculations of the prosecutor's selling and administration expenses. Nafco also requested a summary of the complainants' claim of price suppression. On 8 May, Mr. N.C. Balzary, Director Dumping Operations, Mr. B.M. Smith and Mr. Ryan met with officers of Nafco to discuss the prosecutor's selling and administrative expenses, bulk packs, market segmentation and allocation of subsidy. On 9 May 1986, Mr. Ryan asked ITC to provide a non-confidential summary of the complainants' case that price suppression existed. On 12 May, Nafco gave Customs details of 25 kg. packs of frozen peas exported from New Zealand to Australia between January 1984 and April 1986, together with a summary of the prosecutor's selling and administration expenses. On 16 May, Messrs. Balzary, Smith and Ryan discussed the allocation of EMDTI with officers of ITC. On 20 May, the question of retail sale of the prosecutor's 2 kg. label packs was discussed by Mr. Ryan with Mr. T. Weeitch, Australian Manager, Frozen Foods, of the prosecutor. On 22 May, ITC provided Mr. Ryan with confidential information that the complainants' costs of production had increased. On 23 May, Mr. Ryan made enquiries of G.J. Coles, Sydney, and Woolworths, Sydney, concerning the prosecutor's 2 kg. label packs. On 29 May, Nafco outlined to Mr. Ryan its understanding of the prosecutor's allocation of EMDTI. On 29 May, Customs received a submission from ITC dealing with material injury and price suppression. On 30 May, the prosecutor's solicitors provided Mr. Ryan with a comprehensive submission. The submission was discussed at a meeting held on 3 June 1986 between officers of Customs and representatives of Nafco, the prosecutor and its solicitors. On 19 June, Customs received a confidential submission from ITC on the issue of material injury said to have been suffered by Edgell. On 20 June, Mr. Balzary received a submission from Nafco listing retailers and distributors of frozen peas which it urged Customs to approach, together with a suggested questionnaire. On 26 June, Mr. Balzary received information from Nafco dealing with retail price movements of frozen peas in Melbourne. On 9 July, Mr. Ryan discussed "injury factors" with a representative of ITC. On 11 July, Customs received from ITC confidential details of McCain's production of trading in frozen vegetables for the financial year 1985/1986. On 16 July, ITC provided Customs with an advice on the impact upon Edgell of growers' price increases. On 1 August, Customs received from ITC price lists published by the prosecutor in July indicating that the prosecutor had increased prices in New Zealand for frozen peas. On 6 August, ITC provided Customs with information indicating a decline in Edgell's profitability. As has been said, on 21 August, the preliminary finding was published.

8. The prosecutor describes its first ground of challenge as "an absence of contemporaneity of comparison" (points of claim paras. 11 to 17; paras. 11 and following are annexed to these reasons - I have omitted confidential material).

9. In my opinion, the argument breaks down at the threshold. The Customs had the right to require and take securities in respect of any duty that may be payable on goods under the anti-dumping legislation (s.42(1B)). The mischief sought to be remedied by the insertion of s.42(1B) was explained by Senator Baume in his second reading speech (Parliamentary Debates, Senate, 14 December 1982 at pp.3433-4):

"The purpose of this Bill is twofold. It amends
the Customs Act to place beyond doubt that
securities may be validly taken under section 42
of that Act for the purposes of the Customs
Tariff (Anti-Dumping) Act. It also amends the
Administrative Decisions (Judicial Review) Act
to remove from the scope of that Act decisions
made under section 42 of the Customs Act to
require and take securities in respect of duty
that may be payable under the Customs Tariff
(Anti-Dumping) Act.

The Customs Tariff (Anti-Dumping) Act is the
legislation which enables the Government to take
anti-dumping and countervailing duty action
against imports. This action is designed to
offset export prices which are not established
on a fair commercial basis.

Where a preliminary affirmative finding of
dumping or subsidisation is made by the
Department of Industry and Commerce and there is
evidence of material injury or threat of
material injury to the domestic industry,
provisional action in the form of securities may
be taken under the provisions of section 42 of
the Customs Act.

The securities are held in accordance with the
time limits specified in the Customs Act until,
after inquiry, a final decision is made as to
whether dumping or countervailing duties are
warranted.

If the final decision is in the affirmative the
securities held are adjusted to the amount of
the duty to be imposed. If the decision is that
dumping or countervailing duty is not warranted
the securities are returned to depositors.

As a consequence of litigation in the Federal
Court the department has been restrained from
taking provisional anti-dumping and
countervailing securities in respect of the
importation of certain goods into Australia.

It has been argued in these proceedings that the
terms of section 42 of the Customs Act do not
authorise the taking of security for the purpose
of protecting Australian industry.

The amendments in Clause 4 of the Bill provide
an express link between section 42 of the
Customs Act and the Customs Tariff
(Anti-Dumping) Act. This is proposed to remove
any doubt as to the validity of requiring
securities under the Customs Act for the
purposes of the Customs Tariff (Anti-Dumping)
Act.

In my Second Reding Speech relating to the
Customs Tariff (Anti-Dumping) Amendment Bill
(No.2) 1982 I explained how exporters of goods
to Australia have been able to use the existing
law to prevent the Department from taking
provisional securities.

The provisions of Clause 6 of the Bill are
designed to minimise the opportunities to
prevent the taking of such securities. Under
this clause decisions relating to the taking of
the securities will be exempted from the scope
of the Administrative Decisions (Judicial
Review) Act...

The Government believes that the removal from
judicial review of decisions on provisional
securities is essential if anti-dumping and
countervailing measures are to be effective in
combatting unfair international trading
practices which operate to the detriment of
Australian industry."

10. The power to require securities must, of course, be exercised bona fide and "reasonably" (cf. Tasman Timber at p.166). But there is no suggestion here of bad faith; and, as Mason J. explained in Minister for Aboriginal Affairs v. Peko Wallsend Ltd. (1986) 66 ALR 299 at p 310, for the purposes of judicial review, a decision will only be set aside on the "Wednesbury" principle if it is "manifestly unreasonable". Where, as here, the statute entrusts Customs with the exercise of a provisional judgment as to whether anti-dumping duty "may be payable", the task of persuading the Court to intervene by way of judicial review is a formidable one. As Lord Brightman observed in Puhlhofer v. Hillingdon London Borough Council [1986] UKHL 1; (1986) AC 484 (at p 518):

"Where the existence or non-existence of a fact
is left to the judgment and discretion of a
public body and that fact involves a broad
spectrum ranging from the obvious to the
debatable to the just conceivable, it is the
duty of the court to leave the decision of that
fact to the public body to whom Parliament has
entrusted the decision-making power save in a
case where it is obvious that the public body,
consciously or unconsciously, are acting
perversely."

11. I do not accept the starting point of this branch of the prosecutor's arguments as asserted in para. 11 of its points of claim. No doubt, at the imposition duty stage, if it be reached, Customs would be under a duty to make a comparison between "normal value" and "material injury". But under s.42(1B), Customs has the right to require securities if, in its judgment, duty "may be payable". There is nothing in terms in s.42(1B) which requires Customs to carry out the comparison now suggested. Nor should any such obligation be implied in s.42(1B). On the contrary, since the securities are intended to be merely provisional and thus call for a preliminary inquiry only, it would defeat the object of s.42 to require that Customs be subjected to constraints appropriate only in the event of the imposition of duty. At the present anterior stage, since the only relevant function of Customs is to form a judgment whether duty may be payable, it is not open to the prosecutor to complain of Customs' failure to adhere to procedures appropriate only in the event of a decision to impose duty.

12. The prosecutor's second contention is summarised in its points of claim as "a misconception as to goods" (paras. 18 to 25). Again, in my view, the argument breaks down at the outset, for similar reasons. Contrary to the assertion in para.24, Customs was not obliged by any express or implied obligation in s.42 "to enquire into @goods' at a particular point of time; and...to be satisfied that the importation of these @goods' by the (p)rosecutor has caused material damage." As has been said, the relevant function of Customs under s.42, including s.42(1B), is to form a judgment whether duty may be payable. Of course, no mention is there made of "goods". The formation of the judgment called for by s.42(1B), is essentially one of fact. It involves no question of law and not even a process of construction to arrive at the meaning of a word where used in a statute in the sense explained by Mason J. in Hope v. The Council of the City of Bathurst [1980] HCA 16; (1980) 144 CLR 1 at pp 7-8.

13. The prosecutor then complains that it was denied an opportunity to be heard (paras.26 to 36). In the first place, the prosecutor alleges a denial of natural justice by asserting a failure on the part of Customs to disclose to it the thrust of the material relied on by Customs. Again, the argument proceeds upon the footing that the subject inquiry was, or was to be equated with, a decision to impose duty. As has been said, Customs had only embarked upon the preliminary inquiry whether provisional measures in the form of requiring securities were warranted. What does the duty to act fairly require in the present circumstances? (cf. Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321 per Mason J. at p 347). In my opinion, to act fairly in the present case did not require Customs to warn the prosecutor of the material upon which it proposed to rely for the purpose of making a preliminary finding or even a summary of that material. Fairness would, in my view, be achieved if the prosecutor were informed that a complaint had been made that the prosecutor had engaged in activities in consequence of which duty may be imposed under the anti-dumping legislation and if the prosecutor were afforded an adequate opportunity to be heard on that question. The details of the history of the inquiry conducted by Customs which I have recounted indicate that the prosecutor was apprised of the possibility that securities may be required pursuant to s.42(1B) and the prosecutor was given every opportunity to make submissions, and did in fact make submissions, to Customs on that question. I do not think that, given the preliminary stage of proceedings and the provisional character of the measures involved, fairness required that Customs go further and give the prosecutor the benefit of the details suggested.

14. The second aspect of the prosecutor's argument based on the requirements of natural justice is that Customs was bound to embark upon the specific inquiries suggested by the prosecutor (points of claim para. 29). In this connection the prosecutor relies upon the observations of Wilcox J. in Prasad v. Minister for Immigration and Ethnic Affairs (1985) FC.R 155 at p 169 to the effect that a power is exercised in an improper manner if the decision-maker unreasonably fails to ascertain relevant facts which he knew to be readily available to him. In Peko Wallsend, Mason J. observed (at p.309):

"The limited role of a court reviewing the
exercise of an administrative discretion must
constantly be borne in mind. It is not the
function of the court to substitute its own
decision for that of the administrator by
exercising a discretion which the legislature
has vested in the administrator. Its role is to
set limits on the exercise of that discretion,
and a decision made within those boundaries
cannot be impugned (Wednesbury Corporation at
228).

It follows that, in the absence of any statutory
indication of the weight to be given to various
considerations, it is generally for the
decision-maker and not the court to determine
the appropriate weight to be given to the
matters which are required to be taken into
account in exercising the statutory power (Sean
Investments Pty. Ltd. v. MacKellar at p 375; R.
v. Anderson; Ex parte Ipec-Air Pty. Ltd. [1965] HCA 27; (1965)
113 CLR 177 at 205; Elliott v. Southwark
London Borough Council (1976) 1 WLR 499 at
507; (1976)) 2 All ER 781 at 788; Pickwell v.
Camden London Borough Council (1983) Q.B. 962 at
990). I say @generally' because both principle
and authority indicate that in some
circumstances a court may set aside an
administrative decision which has failed to give
adequate weight to a relevant factor of great
importance, or has given excessive weight to a
relevant factor of no great importance. The
preferred ground on which this is done, however,
is not the failure to take into account relevant
considerations or the taking into account of
irrelevant considerations, but that the decision
is 'manifestly unreasonable'."

15. In my opinion, there is no scope for the application in matters of judicial review for any doctrine of constructive notice. Such a doctrine has its origins in areas of property law and in the principles of equity which are quite foreign to the context of judicial review. It may be possible to argue in a particular case that a decision-maker failed to take into account a particular matter which he was bound to take into account and the exercise of power may be improper for that reason or, as Mason J. suggests, because it is "manifestly unreasonable" in the Wednesbury sense. But those are grounds of judicial review in their own right and they do not depend upon any independent ground of review based upon any suggestion of constructive notice. In the present case, given the preliminary nature of the finding and the provisional character of the measures involved, I do not think it can be said that, as a matter of law, Customs was bound to take into account the matters specified in para.29 of the points of claim. Nor, being a matter essentially for the judgment of Customs, could it be said that the omission to pursue such inquiries was "manifestly unreasonable".

16. The way in which the prosecutor seeks to develop its case under the requirements of the rules of natural justice is that the material relied upon was not of sufficient probative value (points of claim para.36). The authorities in this area were discussed by Burchett J. in GTE (Australia) at pp.58-61. In my opinion, no breach of the rules of natural justice has been demonstrated here for the reasons already given. That is to say, since the inquiry was of a preliminary nature only and since the matter was one for the judgment of Customs as to whether duty may be payable, it is impossible to say that the material relied upon by it lacked probative value in the sense explained by the authorities.

17. Finally, it is contended by the prosecutor that the power to require securities in the present case was exercised for an improper purpose (points of claim paras. 35, 36 and 37). It is true that in the preliminary finding the following appears:

"provisional measures are considered appropriate
against future imports of the goods to prevent
the continuation of material injury to the
Australian industry during the period of
investigation."

18. It is suggested by the prosecutor that the statement that securities were imposed "...to prevent the continuation of material injury to the Australian industry during the period of investigation" indicates that the statutory power was invoked for some ulterior purpose.

19. In my opinion, the suggestion should be rejected. When the Customs notice is read as a whole it is apparent that Customs has formed the opinion that a preliminary finding of dumping is justified and that because further material injury is threatened, it is appropriate that securities be required. In other words, Customs has formed the opinion that duty may be payable and, accordingly, has exercised its statutory right in such circumstances to require securities. This involves no improper or ulterior purpose.

20. It should be noted that in his address in reply, the prosecutor sought leave to amend its points of claim. The respondent opposed the amendment. The proceedings had, at that stage, continued for several days and the prosecutor made no attempt to explain the need to amend at such a late stage - indeed the prosecutor claimed that the amendment was probably unnecessary as its substance was already raised by the points of claim. I reserved on the question until the publication of these reasons. Given the delay in making the application, the respondent is likely to be prejudiced in his conduct of the proceedings. The application is accordingly refused.

21. In the result, the application will be dismissed. The prosecutor must pay the costs of the first respondent. My tentative view is that there should be no order for the costs of the second and third respondents. However, I will reserve liberty for them to apply for costs should they be so advised.

22. In the proceedings themselves, I propose to make the following orders:

l. Application dismissed.

2. Discharge Order Nisi.

3. Order that the prosecutor pay the costs of the
first respondent.

4. Reserve liberty to the second and third
respondents to apply for costs.