Re Midland Metals Overseas Limited v Comptroller-General of Customs and Larry John Roux [1989] FCA 5 (30 January 1989)

FEDERAL COURT OF AUSTRALIA

Re: MIDLAND METALS OVERSEAS LIMITED
And: COMPTROLLER-GENERAL OF CUSTOMS and LARRY JOHN ROUX
No. ACT G56 of 1988
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - judicial review - Customs - Anti-dumping - Applications requesting publication of dumping duty notice - Decisions accepting applications and initiating full investigation - Whether applications properly made in accordance with statute - Whether decision-maker bound to reject applications - Whether importer entitled to make submissions before decision made to hold investigation - Legitimate expectation - Whether irrelevant considerations taken into account.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

Customs Tariff (Anti-Dumping) Act 1975 (Cth), ss.8, 13, 18

Customs Act 1901 (Cth), ss.269T, 269TB, 269TC, 269TD, 269TF

Anti-Dumping Authority Act 1988 (Cth), ss.4, 7, 8

HEARING

CANBERRA
30:1:1989

Counsel for the applicant: Mr T.J. Higgins, Q.C.

and Mr N.J. Topfer

Solicitors for the applicant: Mallesons Stephen Jaques

Counsel for the respondents: Mr J.M. Batt, Q.C.
and Mr G.A.A. Nettle

Solicitor for the respondents: Australian Government Solicitor

ORDER

The application be dismissed.

The applicant pay the respondents' costs of the application.

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

DECISION

This is an application by Midland Metals Overseas Limited ("Midland Metals") for an order of review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"). The respondents to the application are the Comptroller-General of Customs ("the Comptroller") and Larry John Roux, relevantly a delegate of the Comptroller. The decisions in respect of which the order of review is sought are identified in the amended application as being:

"(i) a decision of the first or second
respondent made on or about 8 December
1988 that applications lodged by Pirelli
Cables Australia Limited, Cable Makers
Australia Proprietary Limited and
Pacific Dunlop Limited by its division
Olex Cables satisfied the requirements
of Section 269TC(1) (of the) Customs Act
1901;
(ii) a decision of the first or second
respondent made on or about 8 December
to accept for investigation by
Australian Customs Service a dumping
complaint concerning low voltage 0.6/1kV
aerial bundle(d) cross linked
polyethylene (XLPE) cable."

2. It appears from the evidence that the decisions of which the applicant complains were made by Mr Roux as delegate of the Comptroller. On 8 December 1988, he signed a document in the following terms:

"I, Larry John Roux, delegate of the
Comptroller-General of the Australian Customs
Service (ACS) have accepted an application under
sub-section 269TB(1) of the Customs Act 1901,
that there are reasonable grounds to initiate an
investigation into the alleged injurious dumping
of low voltage 0.6/1kV aerial bundled cross
linked polyethylene (XLPE) cable from the
Republic of Korea and Singapore.
Cable Makers Australia Proprietary Limited, Olex
Cables AND Pirelli Cables Australia Limited are
the applicants and manufacturers of low voltage
aerial bundled XLPE cable in Australia. The
manufacturer of the imported goods is Dae Sung
Electric Wire Co. Ltd., Seoul, Republic of Korea
and the exporter/importer is Midland Metals
Overseas Limited, Singapore.
The goods under complaint are classified within
subheading 8544.59.00 (statistical code 06) of
Schedule 3 of the Customs Tariff Act 1987. The
rates of duty are general 14% and developing
country 9%.
The ACS will prepare a preliminary finding on
the complaint within 120 days of the publication
of this notice. If this finding is that there
are sufficient grounds for publication of a
dumping notice, provisional measures (involving
the taking of securities under section 42 of the
Customs Act 1901) may be imposed. A positive
preliminary finding would be referred to the
Anti-Dumping Authority for further investigation
and report to the Minister (within 120 days) on
whether dumping duties should be imposed.
The ACS has published Australian Customs Notice
(ACN) No.88/224 notifying initiation of the
investigation and the procedures involved.
Copies of the ACN are available from the
Publications Section, Customs House, Canberra or
regional offices of the Australian Customs
Service in each capital city.
All interested parties are invited to lodge
written submissions with Mr John McDermott,
Dumping Operations, Australian Customs Service,
Customs House, 5 Constitution Avenue, CANBERRA,
ACT, 2601 not later than 17 January 1989."

3. Australian Customs Notice No.88/224, which was issued on 8 December 1988, was in substantially the same terms as the document signed by Mr Roux. It did, however, contain the following additional information:

"Known interested parties have been contacted by
the ACS and invited to provide written
submissions which must be received by 17 January
1989. Other interested parties who wish to have
their views considered may also make submissions
which must be received by that date. Those
parties lodging submissions by 17 January 1989
may provide the ACS with further responses
following examination of submissions lodged by
other parties. The final date for receipt of
submissions will be 17 February 1989 so that all
relevant information may be considered and a
preliminary finding published by 7 April 1989.
The ACS will place copies of submissions
received on a public file which will be
available for examination at the office of the
Dumping Control Branch, Customs House, 5
Constitution Avenue, CANBERRA ACT 2600.
Information which interested parties wish to
provide confidentially must be clearly marked
confidential and must be accompanied by two
copies of a non-confidential version, one being
for inclusion on the public file. Where
disclosure of confidential information in a
generalised form is not considered appropriate,
a statement of reasons is required on why
summarisation is not possible. The attention of
interested parties is drawn to Article 6 of the
GATT Anti-Dumping Code, particularly Article 6.4
which states:
'However, if the authorities concerned find
that a request for confidentiality is not
warranted and if the supplier is either
unwilling to make the information public or
to authorise its disclosure in generalised
or summary form, the authorities would be
free to disregard such information unless
it can be demonstrated to their
satisfaction from appropriate sources that
the information is correct.'"

4. On the same day, 8 December 1988, a notice was published in "The Australian Financial Review" newspaper (see sub-s.269TC(4) of the Customs Act 1901 (Cth) ("the Customs Act"). The notice was in the following terms:

(NOTICE OMITTED)

The form of any notice which may have been published in the Commonwealth of Australia Gazette pursuant to sub-s.264TC(4) is not in evidence.
Relevant legislation

5. Sub-section (3) of s.8 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) ("the Anti-Dumping Act") provides that there is to be charged, collected and paid on goods to which the section applies a special duty of Customs, to be known as dumping duty. Sub-sections (1) and (2) of s.8 provide:

"(1) Subject to section 13, where the
Minister is satisfied, as to any goods that have
been exported to Australia, that -
(a) the amount of the export price of the
goods is less than the amount of the
normal value of those goods; and
(b) by reason thereof -
(i) material injury to an Australian
industry producing like goods has
been or is being caused or is
threatened or the establishment
of an Australian industry
producing like goods has been or
may be materially hindered; or
(ii) in a case where security has been
taken under section 42 of the
Customs Act in respect of any
duty that may become payable on
the goods under this section -
material injury to an Australian
industry producing like goods
would or might have been caused
if the security had not been
taken,
the Minister may, by notice published in the
Gazette, declare that this section applies to
those goods.
(2) Where the Minister is satisfied, as to
goods of any kind, that -
(a) the amount of the export price of like
goods that have already been exported to
Australia is less than the amount of the
normal value of those goods, and the
amount of the export price of like goods
that may be exported to Australia in the
future may be less than the normal value
of the goods; and
(b) by reason thereof, material injury to an
Australian industry producing like goods
has been or is being caused or is
threatened, or the establishment of an
Australian industry producing like goods
has been or may be materially hindered,
the Minister may, by notice published in the
Gazette (whether or not he has made, or proposes
to make, a declaration under sub-section (1) in
respect of like goods that have been exported to
Australia), declare that this section applies to
like goods -
(c) that are exported to Australia after the
date of publication of the notice or
such later date as is specified in the
notice; and
(d) the amount of the export price of which
is less than the amount of their normal
value."

6. Section 13 of the Anti-Dumping Act to which sub-s.8(3) of that Act is expressed to be subject deals with retrospective notices. Sub-section (1) prohibits the publication of a notice under sub-s.8(1) in respect of goods that have been entered for home consumption. That prohibition, however, does not apply in respect of goods entered for home consumption which fall within the purview of sub-s.(2), (3) or (6) of s.13.

7. A notice under sub-s.8(2) in respect of a kind of goods may be expressed to apply to goods of that kind exported from a particular country or goods of that kind exported by a particular exporter (Anti-Dumping Act, s.18).

8. Section 4A of the Anti-Dumping Act and ss.5 and 5AA thereof respectively contain provisions by the application of which the export price of any goods exported to Australia and the normal value of such goods is to be ascertained or determined. Section 5A specifies matters to which the Minister may have regard in determining, for the purposes of s.8, whether material injury to an Australian industry has been or is being caused or is threatened or would or might have been caused, or whether the establishment of an Australian industry has been materially hindered, by reason of any circumstances in relation to the exportation of goods to Australia from another country .

9. Sections 269TB and 269TC of the Customs Act enable a person to make an application requesting that the Minister publish a dumping duty notice, an expression which includes a notice under sub-s.8(1) or (2) of the Anti-Dumping Act (see sub-s.269T(1)). They also provide for the consideration of such an application by the Comptroller. Those sections came into operation on 1 September 1988 and, so far as material for present purposes, provide:

"269TB. (1) Where:
(a) a consignment of goods:
(i) has been imported into Australia;
(ii) is likely to be imported into
Australia; or
(iii) may be imported into Australia,
being like goods to goods to
which subparagraph (i) or (ii)
applies;
(b) there is, or may be established, an
Australian industry producing like
goods; and
(c) a person believes that there are, or may
be, reasonable grounds for the
publication of a dumping duty notice
.... in respect of the goods in the
consignment;
that person may, by application in writing lodged
with the Comptroller, request that the Minister
publish that notice in respect of the goods in
the consignment.
(2)....
(3)An application under subsection (1) ....
shall:
(a) be in accordance with an approved form;
(b) include such information relating to:
(i) the matters referred to in
paragraphs (a) and (b) of that
subsection; and
(ii) the matters which the applicant
believes constitute reasonable
grounds for the publication of a
dumping duty notice .... to which
the application relates;
as is required by the form; and
(c) be signed and witnessed in the manner
indicated in the form.
269TC. (1) The Comptroller shall, before the
expiration of a period of 55 days .... after
lodgment of an application by a person under
subsection 269TB(1) in respect of the goods the
subject of the application, examine the
application and, if the Comptroller is not
satisfied:
(a) that the application complies with
subsection 269TB(3);
(b) that there is, or is likely to be
established, an Australian industry in
respect of like goods; and
(c) that the matters that are set out in the
application as constituting reasonable
grounds for the publication of the
dumping duty notice .... in respect of
the goods the subject of the application
would, if established, constitute
reasonable grounds for the publication
of such a notice, or for the publication
of such a notice upon the importation
into Australia of such goods;
he or she shall reject the application and inform
the applicant, by notice in writing, accordingly.
(2) ....
(3) Where, in accordance with subsection (1)
.... the Comptroller rejects an application, the
notice informing the applicant of that rejection:
(a) shall state the reasons why the
Comptroller was not satisfied of one or
more of the matters set out in that
subsection; and
(b) shall inform the applicant of the
applicant's right to refer the decision
of the Comptroller in respect of the
matters in respect of which the
Comptroller was not so satisfied to the
Authority for review.
(4) Where the Comptroller does not reject an
application in respect of the goods the subject
of the application made under subsection 269TB(1)
...., the Comptroller shall publish a notice in
the Gazette and in a newspaper circulating in
each State and in the internal Territories:
(a) setting out particulars of those goods;
(b) setting out the identity of the
applicant and:
(i) in the case of an application
under subsection 269TB(1), the
identity of the producer or
producers; and
(ii) ....
(c) stating that, within a specified period
after the publication of the notice,
being the period of 120 days ...., the
Comptroller will make a preliminary
finding as to whether there are
sufficient grounds for the publication
of a dumping duty notice .... in respect
of the goods the subject of the
application or there will be sufficient
grounds for such publication subsequent
to the importation into Australia of
such goods;
(d) stating that a preliminary finding that
there are or will be such grounds may
result in the imposition of provisional
measures including the taking of
securities under section 42 of this Act
for the period specified in subsection
45(2) of this Act in respect of dumping
duty .... that may become payable on the
importation of the goods the subject of
the application; and
(e) inviting interested parties to lodge,
within a specified period after
publication of the notice, being a
period of 40 days or, if a lesser period
is indicated in the notice, that lesser
period, submissions with the
Comptroller, concerning the publication
of the notices sought by the
application;
and shall give a copy of that notice to the
applicant."

The expression "like goods" is defined in sub-s.269T(1) as follows:

"'like goods', in relation to goods under
consideration, means goods that are identical in
all respects to the goods under consideration or
that, although not alike in all respects to the
goods under consideration, have characteristics
closely resembling those of the goods under
consideration."

The reference in sub-s.269TC(3) to "the Authority" is a reference to the Anti-Dumping Authority established by s.4 of the Anti-Dumping Authority Act 1988 (Cth) ("the Authority Act"), an Act which also came into operation on 1 September 1988.

10. A decision by the Comptroller to reject an application may be reviewed by the Authority at the request of the applicant (Customs Act, par.269TF(1)(a) and Authority Act, sub-s.8(1)). In conducting a review, the Authority is not to have regard to any information that was unavailable to the Comptroller at the time the decision to reject the application was made (Authority Act, sub-s.8(3)). The Authority is required to make a decision within 60 days after the matter is referred to it. If the Authority revokes the decision rejecting the application, the Customs Act has effect as if the substituted decision were a decision of the Comptroller (Customs Act, sub-s.269TF(2)).

11. Where the application is not rejected, the Comptroller is to consider the application after the end of the period for lodging submissions but before the end of the period referred to in par.269TC(4)(c) of the Customs Act, taking into account any submissions received and any other matters that the Comptroller considers relevant (Customs Act, sub-s.269TD(1)). If the Comptroller makes a preliminary finding that there are sufficient grounds for the publication of a dumping duty notice in respect of the goods the subject of the application or that there will be sufficient grounds for such publication subsequent to the importation into Australia of such goods, the Comptroller is to publish a notice declaring that such a preliminary finding has been made and is, within 7 days of publication of that notice, to refer the question whether the publication of the notice sought in the application is so justified to the Authority (sub-s.269TD(2)). If the Comptroller makes a preliminary finding that there are not such sufficient grounds, the Comptroller is to publish that finding, state the reasons why he made that finding and inform the applicant that the finding may be referred to the Authority for review (Customs Act, sub-ss.269TD(3) and (4) and par.269TF(1)(b), and Authority Act, sub-s.8(2)). Again, the Authority is to make a decision upon the review within 60 days after the finding is referred to it and is not to have regard to any information that was unavailable to the Comptroller (Authority Act, sub-s.8(3)). Where the preliminary finding of the Comptroller is reversed by the Authority, the Customs Act has effect as if the substituted finding were a preliminary finding of the Comptroller which had been published in accordance with par.269TD(2)(a) and had been duly referred to the Authority under par. 269TD (2)(b).

12. Where, in relation to an application under s.269TB of the Customs Act, the question whether the publication of a dumping duty notice in respect of the goods the subject of the application is justified is before the Authority, the Authority is required, after holding an inquiry into the matter and before the expiration of 120 days after the reference of the matter to it, to give to the Minister a report (Authority Act, sub-s.7(1)). The report is to recommend whether a dumping duty notice should be published and the extent of any duties that are or should be payable under the Anti-Dumping Act in consequence of such notice. In particular, the report is to recommend whether the Minister ought to be satisfied as to the matters in respect of which the Minister is required to be satisfied before such a notice can be published (ibid).
Form and requirements of an application under s.269TB of the Customs Act

13. The Australian Customs Service has, with the approval of the Comptroller, issued a booklet entitled "Applicant's Dumping Questionnaire". The booklet is expressed to contain "Guidelines and requirements for the submission of a properly documented application under the provisions of the Customs Tariff (Anti-Dumping) Act 1975". Under the sub-heading "Information Required", the following appears:

"An application must be made in accordance with
a questionnaire designed to help applicants
present their case simply and logically. It is
structured to bring out as much information as
possible about the dumping .... and material
injury caused to an Australian industry.
The questionnaire is not of the 'fill-in' type
but requires a submission in answer to each
question and instruction. Information provided
by applicants must be in the order asked in the
form and be affixed to the declaration provided.
Where statistical or accounting data is
required, appendices have been included giving
the format for presentation of the data."

Under the sub-heading "Consideration of Application", the guidelines state:

"Once an application has been received it will
be examined to decide whether it contains all of
the information required for it to be considered
properly documented. An inadequately documented
application will be rejected within 15 days of receipt.
An adequately documented application that does
not constitute a prima facie case of material
injury caused by dumping .... will be rejected
within 55 days of receipt.
In cases of rejection the applicant will be
informed of the reasons in writing. The
applicant may, within 30 days, refer the
decision to the Anti-Dumping Authority for
review. The Authority will confirm or revoke
the decision within 60 days.
Where an application is not rejected a notice is
published setting out certain particulars of the
case and inviting interested parties to lodge
submissions."

The period of 15 days after receipt of an application nominated as the period within which an inadequately documented application will be rejected has been adopted administratively: it is not a requirement of the legislation.

14. The guidelines then give some details as to the investigation process after the publication of a notice of the kind referred to above. Under the sub-heading "Disclosure of Information", the guidelines state:

"To ensure confidentiality of sensitive
Commercial-in-Confidence material, parties
supplying information must ensure that it is
clearly marked either 'confidential' or
'non-confidential' at the top of each page.
Information supplied confidentially must,
however, be accompanied by a non-confidential
summary or, if it is not susceptible to
summarisation, a statement of the reasons why
summarisation is not possible must be provided.
Applicants must provide non-confidential
submissions and summaries in triplicate together
with sufficient additional copies for
distribution to all interested parties
identified in the submission (i.e. local
producers, importers and exporters) and
respective foreign governments. Confidential
submissions are required in duplicate except
where more than one overseas country is involved
when extra copies should be provided
accordingly.
A copy of all non-confidential submissions and
summaries will be placed on the public file.
The public file provides access to all relevant
information available to the Australian Customs
Service except that information which is
confidential."

15. Immediately following the guidelines the booklet contains what may best be described as a form of cover sheet capable of ready removal from the booklet. The form is designed, when completed, to be appended to the application and it bears a note to that effect. The cover sheet is in the following terms:

(COVER SHEET OMITTED)

16. The remainder of the booklet sets out the questions which an applicant is to answer in the order asked and certain instructions with which an applicant is to comply. The questions are grouped under various sub-headings as follows:

A. General background
B. Goods under complaint
C. Import supply
D. Export price
E. Normal value
F. Price comparison
G. Dumping margin
H. Subsidisation
I. Material injury
J. Profit/Loss

A number of appendices setting out the format in which statistical or accounting data is to be supplied completes the booklet.

17. Under the sub-heading "Goods under complaint", the following appears:

"1. Give a full description including
specifications of each model of the
allegedly dumped goods (2) and the like
goods produced by your company. Supply
samples, brochures and/or catalogues.
2. What is the tariff classification,
statistical code and rate of duty
applicable to the allegedly dumped goods
and any tariff concession order that may
apply?"

The figure "(2)" refers to a note which states that an application for action under the Anti-Dumping Act may also apply to goods that are likely to, or may be, imported.
The applications under s.269TB of the Customs Act and their history

18. On 27 September 1988, three applications requesting that the Minister publish a dumping duty notice in respect of cross linked polyethylene (XLPE) cable were lodged with the Comptroller in purported compliance with sub-s.269TB(1) of the Customs Act. The applications were lodged by Rod Price and Associates Pty Limited, described as Economic Consultants, on behalf of Pirelli Cables Australia Limited ("Pirelli"), Cable Makers Australia Pty Limited ("Cable Makers") and Olex Cables ("Olex") respectively. Those companies are said to comprise the Australian industry manufacturing cross linked polyethylene (XLPE) cable. The applications were accompanied by a document described as a submission on behalf of the Australian Cable Industry, a submission presumably made by the Australian Electrical and Electronic Manufacturers' Association Limited.

19. The applications in the form in which they were then lodged are not in evidence. It appears, however, that the application of Pirelli had attached to it the approved form of cover sheet which had been signed and witnessed and in which the date 26 September 1988 had been inserted. The application of Cable Makers also had attached to it the approved form of cover sheet duly signed and witnessed. No date, however, had been inserted in the space provided. The application of Olex was not accompanied by the approved form of cover sheet.

20. On 11 October 1988, a letter, mistakenly dated 11 September 1988, was forwarded by the Australian Customs Service to Mr Rod Price of Rod Price and Associates Pty Limited informing him that certain deficiencies had been detected in the applications lodged on behalf of Pirelli, Cable Makers and Olex and that those applications had been rejected. The documents lodged on behalf of the applicants were returned to Rod Price and Associates Pty Limited under cover of the letter. The letter also recorded the matters concerning the applications which on 11 October 1988 had been discussed by officers of the Australian Customs Service with Mr Price. In effect, the letter gave the reasons for the rejection of the applications. So far as appears from the evidence, no steps were taken by any of the applicants to have the decision to reject its application reviewed by the Authority.

21. By letter dated 25 October 1988, received by the Australian Customs Service on the following day, Mr Price forwarded what was referred to as "a re-newed application for the imposition of anti-dumping measures on XLPE cable exported from Singapore and sourced from the Republic of Korea on behalf of Cable Makers, Pirelli Cables and Olex Cables". Although described as a single application, there were, in fact, three separate applications, one from each company.

22. The letter referred to the matters that had been raised in the letter of 11 October 1988 as having been discussed at the meeting held on that date and briefly discussed how those matters had been dealt with in the renewed applications. The applications were accompanied by what was described as an industry submission. That submission was said to be wholly confidential and a summary was forwarded for inclusion in the public file.

23. The full text of the three applications and of the industry submission received by the Australian Customs Service on 26 October 1988 is not before the Court. Only the non-confidential parts of the applications and the non-confidential summary of the industry submission are in evidence. In view of that circumstance and the fact that the applications and industry submission as lodged on 27 September 1988 are also not in evidence, it is not possible to appreciate to what extent the documents lodged on 26 October 1988 differ from those lodged on the earlier date. Some alterations were, however, made to the documents as originally lodged. Some of those amendments appear on the face of the renewed applications. In addition, some pages of the original applications were replaced. The renewed applications of Pirelli and Cable Makers were respectively attached to the cover sheets to which the original applications by those companies had been attached. In other words, new cover sheets had not been prepared and signed in respect of the renewed applications. The renewed application of Olex was not accompanied by the approved form of cover sheet.

24. In each of the renewed applications, the goods under complaint were described as "the full range of XLPE cables i.e. 0.6/1kV known as low voltage and 1.9/3.3kV up to 19/33kV known as high voltage".

25. In early November 1988, officers of the Australian Customs Service visited the premises of each of the applicant companies. Following those visits, Mr Price wrote to Mr John McDermott of the Australian Customs Service a letter dated 14 November 1988 in the following terms:

"Thank you for the time taken by yourself, John
Gobell and Mike Henry to visit the three local
companies last week. Your assistance in clearly
explaining the ACS approach to dumping issues
was appreciated.
Following your comments on the proposed coverage
of the complaint, discussions have been held
between CMA, Olex and Pirelli and it has been
agreed that the description of the goods under
complaint should be restricted to:
Low voltage aerial bundled cable falling
within tariff description 8544.59.00
statistical code 06
Information on the market size and shares for
this cable will be supplied as soon as possible.
Each of the companies have already provided
details of their tender prices and costs to make
and sell for the major contracts involving
aerial bundled cable. Furthermore the data in
the industry submission on constant prices and
on the dumping margins refers to 95 mm bundled 4
core cable and of course remains relevant under
the restricted coverage.
If you require any further information please
don't hesitate to let me know."

26. It may be convenient, at this point, to mention that, according to material contained in the industry submission, low voltage aerial bundled XLPE cable has been developed as an economical and environmentally acceptable alternative to bare (uninsulated) overhead power line conductors. Conductors of the latter type have hitherto been used by electricity supply authorities in Australia for much of their low voltage reticulation systems, particularly in rural and semi-rural areas.

27. The relevant sub-heading in Schedule 3 to the Customs Tariff Act 1987 (Cth) is sub-heading 8544.59.00 within Chapter 85. The goods falling within that chapter include electrical machinery and equipment and parts thereof. Heading 8544 is in the following terms:

"Insulated (including enamelled or anodised)
wire, cable (including co-axial cable) and other
insulated electric conductors, whether or not
fitted with connectors; optical fibre cables,
made up of individually sheathed fibres, whether
or not assembled with electric conductors or
fitted with connectors."

Sub-heading 8544.59.00 comprises electric conductors (other than winding wire, co-axial cable, other co-axial electric conductors, ignition wiring sets and other wiring sets of a kind used in vehicles, aircraft or ships), for a voltage exceeding 80V but not exceeding 1000V, being conductors not fitted with connectors. The reference to the goods in question falling within statistical code 06 within sub-heading 8544.59.00 is a reference to an administratively adopted code not forming part of the statute. The code identified as 0.6 comprises goods falling within sub-heading 8544.59.00 which are insulated with cross-linked polyethylene (XLPE) materials.
Grounds on which order of review sought

28. The following grounds are relied upon by Midland Metals -

(a) that none of the three applications is
properly to be regarded as an
application under sub-s.269TB(1) of the
Customs Act;
(b) that it was not open to the Comptroller
(or his delegate) to do otherwise than
reject each of the applications pursuant
to sub-s.269TC(1) of the Customs Act;
(c) that there was a breach of the rules of
natural justice in that the delegate of
the Comptroller failed to afford to
Midland Metals an opportunity to make
submissions prior to the decisions under
review being made;
(d) that the delegate of the Comptroller
took into account irrelevant
considerations in reaching the decisions
under review;
(e) that the decisions under review were not
authorised by sub-s.269TC(4) of the
Customs Act because they were made in
respect of goods other than the goods
the subject of the applications under
sub-s.269TB(1).

Ground (a)

29. The first ground on which the order of review is sought is that none of the three applications is properly to be regarded as an application under sub-s.269TB(1) of the Customs Act. In support of this ground, emphasis is placed on the expression "a consignment of goods" in par.(a) of that sub-section and on the references in par.(c) and in the concluding words of the sub-section to "the goods in the consignment". It is submitted on behalf of Midland Metals that the sub-section, by that expression and those references, requires an applicant to identify in the application, as the goods in respect of which the Minister is requested to publish a dumping duty notice, a particular parcel of goods which has been appropriated to a contract of carriage and which has been imported into Australia, or is likely to be imported into Australia or may be imported into Australia (see sub-pars (i), (ii) and (iii) of par.269TB(1)(a)). It is further submitted that it follows from the language of par.269TB(1)(c) that it must be possible to say of the goods which have been appropriated to the contract of carriage and are, therefore, within the identified consignment that they are capable of attracting dumping duty. For example, so the argument runs, it is not sufficient for an applicant to identify a consignment of goods which has already been imported and entered for home consumption unless the application also discloses circumstances providing a basis for concluding that a dumping duty notice may be made in respect of those goods, that is to say, that circumstances are disclosed which would satisfy one of the exceptions to the prohibition in s.13 of the Anti-Dumping Act against the publication of a dumping duty notice in respect of goods already entered for home consumption.

30. It is to be noted that the expression "consignment of goods" does not appear in sub-s.8(1) or (2) of the Anti-Dumping Act - a notice under either of those sub-sections is required simply to identify "goods" to which the section is to apply. The expression "consignment of goods" appears to have been first introduced into the relevant legislative provisions by the Customs Tariff (Anti-Dumping) Amendment Act 1981 (Cth). That amending statute inserted sub-s.8(2A) which provides that, in the event of an undertaking being given in the circumstances mentioned, the Minister may suspend the consideration being given to the export of "a consignment of goods" to Australia with a view to determining whether or not a declaration should be made under s.8 in relation to the goods "in the consignment" or to like goods: see also sub-s.10(2A) of the Anti-Dumping Act.

31. To ascribe to sub-s.269TB(1) the meaning advanced on behalf of Midland Metals would restrict, to a very significant degree, the circumstances in which an application may be lodged requesting the Minister to publish a dumping duty notice. Even in the case of goods already imported into Australia at the time the application is lodged, it would be an unusual circumstance for the applicant to have details of the contract of carriage under which the goods were imported. In the case of goods which are likely to be, or may be, imported, an applicant would be faced with greater difficulty. Details concerning the contract of carriage are, in any event, of no relevance to the determination of the question whether a dumping duty notice should be published.

32. Having regard to the evident purpose and object of the legislation, namely to give effect to the agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (also known as the GATT Anti-Dumping Code) which makes no reference to contracts of carriage, I am of opinion that the meaning contended for by Midland Metals should not be adopted unless the language of the provision is compelling.

33. To my mind, to say that an application may be made where a consignment of goods has been, or is likely to be or may be, imported into Australia does not carry with it the notion that the applicant must identify the goods by reference to the contract of carriage under which the goods have been, or are to be, imported. The reference in the provision to a consignment of goods is, I think, intended to do no more than direct an applicant's attention to the necessity for the application to identify with some specificity the goods the subject of the application. Although it cannot be decisive of the question, it is upon such a view of the provision that the "Applicant's Dumping Questionnaire" to which reference has already been made proceeds when it requires, under the sub-heading "Goods under complaint", that the applicant give a full description of the allegedly dumped goods. There is no requirement in the questionnaire that an applicant identify the contract of carriage under which the goods have been, or are to be, imported so that the failure to provide that information cannot be said to amount to a non-compliance with par.269TB(3)(b) of the Customs Act.

34. What then was done by the three applicant companies to describe the goods the subject of the applications? The material put forward on their behalf identifies a number of contracts for low voltage aerial bundled polyethylene cable awarded by electricity supply authorities in Australia between 1 January 1986 and the date of preparation of the material in 1988. The material includes details of contracts awarded to Midland Metals for such cable in 1987 and 1988 with particular attention being directed to contracts for 0.6 to 1kV, 95 mm, 4 core aluminium, bundled aerial cable. The allegation is that dumping activity commenced in March 1987. Some of the contracts which are said to have been awarded to Midland Metals are described as period contracts under which deliveries are to be made over a period of up to 2 years from the date the contract was awarded. The material also refers to other instances in which tenders have been called for the supply of cable of the kind the subject of complaint but in respect of which contracts had not been awarded at the date of lodging the applications.

35. The delegate of the Comptroller must be taken to have regarded that material as sufficiently identifying the goods the subject of the applications. It has not been shown that he was in error in doing so. The first ground on which the order of review is sought has, therefore, not been made out.
Ground (b)

36. I turn to the second ground on which the order of review is sought. It is submitted that it was not open to the Comptroller (or his delegate) to do otherwise than reject each of the applications pursuant to sub-s.269TC(1) of the Customs Act. It will be recalled that that sub-section requires rejection if, after examining the application, the Comptroller is not satisfied of the matters therein set out. The first of the relevant matters requires the rejection of an application if the Comptroller is not satisfied that the application complies with sub-s.269TB(3).

37. It is convenient, in the first instance, to consider the application lodged on behalf of Pirelli. The only reason advanced to support the contention that that application does not comply with sub-s.269TB(3) of the Customs Act is that such of the material contained therein as differs, by addition, deletion or amendment, from that contained in the application lodged on behalf of that company on 27 September 1988 has not been certified to be complete and correct to the best of the signatory's knowledge and belief as required by the guidelines and the form of cover sheet approved by the Comptroller and referred to earlier in these reasons. The basis for this contention is that the application lodged on 26 October 1988 is accompanied by the same cover sheet as accompanied the earlier, rejected application.

38. In my opinion, the delegate of the Comptroller was not, by reason of the matter relied upon by Midland Metals, bound by the provisions of sub-s.269TC(1) of the Customs Act to reject the application lodged on behalf of Pirelli on 27 October 1988. He was entitled to take the view that, even though a new cover sheet had not been completed and signed, by attaching the previously completed form to what was described as the renewed application, the signatory was to be taken as certifying that the renewed application was complete and correct to the best of his knowledge and belief.

39. The same point is taken in relation to the application lodged on behalf of Cable Makers. An additional point is taken that the application does not comply with sub-s.269TB(3) in that the approved form of cover sheet provides for the insertion of a date and the application lodged on behalf of Cable Makers is deficient in this respect. The absence of a date provides, in my opinion, an insufficient basis for concluding that the delegate of the Comptroller was bound to reject the application under sub-s.269TC(1). The date upon which the approved form of cover sheet is signed and that signature witnessed is of no consequence for the purposes of the procedures to be followed consequent upon the lodging of an application under sub-s.269TB(1). The significant date is the date of lodgment of the application. It was a matter for the delegate to consider whether the application complied with sub-s.269TB(3) and, in the context of the legislation as a whole and its obvious purpose, substantial compliance was all that was required. In my opinion, no ground for the intervention of the Court has been demonstrated.

40. A stronger case is made in relation to the application lodged on behalf of Olex for that application was not accompanied by an approved form of cover sheet and the material contained in the application was not otherwise declared to be complete and correct. However, I have not found it necessary to decide whether, if that application had stood alone, the Comptroller (or his delegate) would have been bound to reject it. I am of opinion that, even if it be correct to regard that application as not complying with sub-s.269TB(3), the Court should, in the exercise of the discretion which it undoubtedly has, decline to grant Midland Metals an order of review in respect of the application lodged on behalf of Olex on that ground. I have reached that conclusion because, even if relief were granted in respect of that application, the remaining two applications would proceed, thus raising the same issues in relation to the same goods. It would, therefore, be futile to make an order in respect of the Olex application. In any event, a fresh application could promptly be lodged on behalf of Olex curing this defect, the only consequence being to extend the period within which the Comptroller might make a preliminary finding in relation to that application.
Ground (c)

41. The relevant legislation expressly provides for an adequate opportunity to be afforded to all interested parties, including the exporter and the importer of the goods in question, to make submissions to the Comptroller following the publication of a notice of the kind referred to in sub-s.269TC(4) of the Customs Act and to the Authority in the event of the matter being referred to it following the making of a preliminary finding by the Comptroller that there are sufficient grounds for the publication of a dumping duty notice. The presence of those express provisions is sufficient, in my opinion, to negative any implication of a general requirement that a similar opportunity be afforded to all interested parties at the stage when the Comptroller is considering whether to publish a notice initiating an investigation. Indeed, I did not understand counsel for Midland Metals to submit that such an implication should be made. A more limited submission was put that certain conversations between Mr Roger Dean Simpson, a trade and customs consultant retained by Midland Metals, and Mr McDermott of the Australian Customs Service gave rise to a legitimate expectation in Midland Metals that any submission which that company wished to make would be considered before a decision was made to publish a notice under sub-s.269TC(4) in relation to the applications made by Pirelli, Cable Makers and Olex.

42. The first of the conversations relied upon took place by telephone. There is a dispute between the participants whether it took place on 31 October or 1 November 1988 but nothing turns on the date. The second conversation, again by telephone, took place on 4 November 1988. This was a very brief conversation which fixed 16 November 1988 as a tentative date for Mr Simpson to meet with Mr McDermott. Such a meeting did, in fact, take place on that date.

43. Both Mr Simpson and Mr McDermott set out, on affidavit, what they said was discussed during each of the three conversations. Both were cross-examined.

44. It is clear that Mr Simpson had become aware, in general terms, that applications had been made requesting the publication of an anti-dumping notice in respect of cross linked polyethylene (XLPE) cable from the Republic of Korea from reading a newspaper article to that effect based on a press release made by Australian Electrical and Electronic Manufacturers' Association Limited. Apart from what was contained in the newspaper article (which is not in evidence), Mr Simpson had no knowledge of the details of the applications nor the basis upon which they had been made. It is also clear that Mr Simpson telephoned Mr McDermott in order to arrange for a submission on behalf of Midland Metals to be put to Mr McDermott with a view to satisfying the Comptroller that the applications should be rejected and not proceed to the investigation stage by virtue of the publication of a notice in accordance with sub-s.269TC(4) of the Customs Act. I accept that Mr Simpson informed Mr McDermott that he was proceeding to Korea and Singapore in order to collect material for inclusion in such a submission.

45. Bearing in mind that any notice in accordance with sub-s.269TC(4) of the Customs Act would have to be published not later than 20 December 1988, that being the date upon which the period of 55 days from the date of the lodging of the applications, viz. 26 October 1988, would expire, I am satisfied that Mr McDermott gave no undertaking and made no statement or promise to Mr Simpson to the effect that no decision would be made to publish such a notice until Midland Metals had had an opportunity, following Mr Simpson's proposed visit to Korea and Singapore, to lodge a submission and that submission had been considered. Mr McDermott did say to Mr Simpson that it was a matter for him whether a submission was lodged on behalf of Midland Metals but at the same time he made it clear that he, McDermott, was giving no assurance that such a submission would be considered prior to a decision being made whether the application should proceed to the full investigative stage.

46. No sufficient basis has been established to found the legitimate expectation upon which Midland Metals relies.
Ground (d)

47. This ground is founded upon an allegation that the delegate of the Comptroller, in reaching the decisions under review, took into account an irrelevant consideration, being information other than that contained in the applications submitted on behalf of the three corporate applicants. In particular, attention was directed to the evidence that, prior to the letter dated 14 November 1988 from Mr Price to Mr McDermott, officers of the Australian Customs Service had visited the premises of each of those companies. Mr McDermott said in evidence that the purpose of those visits was to seek to verify information contained in the applications. The suggestion seems to be that those visits elicited further information which the delegate took into account in reaching his decisions. It was also said that the delegate was not entitled to take into account the industry submission and additional material submitted with, or subsequent to, the letter dated 14 November 1988.

48. The short answer to this submission is that it has not been shown, either by the production of a statement under s.13 of the Judicial Review Act or otherwise, what matters the delegate of the Comptroller took into account in reaching the decisions in respect of which an order of review is sought. In any event, I am not satisfied that any of the information referred to, even if taken into account by the delegate in reaching his decision, was irrelevant to the exercise of the decision-making power vested in him.
Ground (e)

49. This ground relates to an alleged disconformity between the description of the goods the subject of the decisions made by the delegate of the Comptroller and the description of the goods the subject of the applications.

50. As appears from the document signed by Mr Roux on 8 December 1988 and set out above, the decisions which he made related to "low voltage 0.6/1kV aerial bundled cross linked polyethylene (XLPE) cable from the Republic of Korea and Singapore". To support the submission that the goods so identified are not the goods the subject of the applications, counsel for Midland Metals refers to the terms of the applications in the form in which they were lodged on 26 October 1988. In each of those applications, the goods the subject of complaint are described as "the full range of XLPE cables, i.e. 0.6/1kV known as low voltage and 1.9/3.3kV up to 19/33kV known as high voltage".

51. The submission made on behalf of Midland Metals fails to give any significance to the terms of the letter dated 14 November 1988 addressed by Mr Price to Mr McDermott of the Australian Customs Service. That letter informed Mr McDermott that the companies on behalf of which the applications had been lodged on 26 October 1988 had agreed that the description of the goods under complaint should be restricted to "Low voltage aerial bundled cable falling within tariff description 8544.59.00 statistical code 06". Read in isolation, that description would encompass aerial bundled cable other than that referred to in the document signed by Mr Roux on 8 December 1988 - it would, for example, include such cable having a kilovolt rating lower than 0.6kV. The letter should not, however, be read in isolation. It must be read, as was clearly intended, as effecting an amendment to the description of the goods under complaint as set out in the three applications lodged on 26 October 1988. So read, the goods under complaint referred to in the applications as so amended are identical with those described in the decisions made by Mr Roux. This ground, therefore, fails.

52. Counsel for Midland Metals also drew attention to the circumstance that the notice published in "The Australian Financial Review" on 8 December 1988 failed to set out particulars of the goods in relation to which the investigation was being initiated. A perusal of the text of the notice as so published discloses that it did not include a paragraph similar to that contained in the document signed by Mr Roux on 8 December 1988 and in Australian Customs Notice No.88/224 specifying the goods which were to be the subject of investigation. However, reading the notice published in the newspaper as a whole and having regard to the audience to which it would be of interest, the nature of the goods in question may be readily inferred. In any event, it is difficult to see how a defect in the notice could affect the validity of the decisions made by Mr Roux.
Orders

53. For the reasons set out above the application is dismissed. The applicant must pay the respondents' costs of the application.