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Federal Court of Australia |
CUSTOMS AND EXCISE - Anti-dumping duties - Alleged failure to follow statutory procedure - Whether the setting of a non-injurious price necessarily presupposes that material injury would be caused at any lesser price - Whether separate explicit findings required for each of three companies exporting from the same country - Customs Act 1901 (Cth) s 269TG - Customs Tariff (Anti-Dumping) Act 1975 (Cth) - Administrative Decisions (Judicial Review) Act 1977 (Cth).
Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 (Applied)
Enichem Anic SrL v Anti-Dumping Authority [1992] FCA 579; (1992) 39 FCR 458 (Applied)
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IN THE FEDERAL COURT OF AUSTRALIA | |
| AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY | AG 27 of 1997 |
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BETWEEN: | SPP Nemo S.A. comercial Exportadora
First Applicant
Ripasa S.A. Celulose E Papel Second Applicant
Champion Papel E Celulose LTDA Third Applicant
Votorantum Celulose E Papel Fourth Applicant |
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AND: | Minister of State for Small Business and Consumer Affairs
Respondent |
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JUDGE: | FINN J |
| DATE OF ORDER: | 19 DECEMBER 1997 |
| WHERE MADE: | CANBERRA |
THE COURT ORDERS THAT:
1. The application be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA | |
| AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY | AG 27 of 1997 |
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BETWEEN: | SPP Nemo S.A. comercial Exportadora
First Applicant
Ripasa S.A. Celulose E Papel Second Applicant
Champion Papel E Celulose LTDA Third Applicant
Votorantum Celulose E Papel Fourth Applicant |
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AND: | Minister of State for Small Business and Consumer Affairs
Respondent |
JUDGE:
FINN J DATE: 19 december 1997 PLACE: CANBERRA
This is an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of a number of decisions made on 18 December 1997 by the respondent, the Minister of State for Small Business and Consumer Affairs ("the Minister") under the anti-dumping provisions of the Customs Act 1901 (Cth) ("the Act") and the Customs Tariff (Anti-Dumping) Act 1975 (Cth). Those decisions were made in distinctive circumstances that should be outlined at the outset.
The Factual Setting
In 1993 the Australian Customs Service ("the ACS") conducted an inquiry under the Act to ascertain whether dumping duty should be imposed in respect of A4 copy paper exported to Australia from, among other places, Brazil. That inquiry led ultimately to an Anti-Dumping Authority Report (No 119) in January 1994. In light of it the Minister agreed to impose interim dumping duty on nominated exporters, one of which was the fourth applicant, Votorantium Celulose E Papel ("VCP"). In July of 1994 consequent upon a further Report (No 132) of the Anti-Dumping Authority the Minister, without proceeding to impose dumping duties, accepted price undertakings under s 269TG(4) of the Act from the first and third applicants, SPP Nemo SA Commercial Exportadora ("Nemo") and Champion Papel E Celulose Ltda ("Champion"). Both are Brazilian companies and both had been involved in, and were the subjects of adverse findings in, the 1993 inquiry.
In 1996 the ACS conducted a new inquiry into the export of A4 copy paper from several countries including Brazil. That inquiry, in substance, served somewhat different purposes in relation to the four applicants in this matter (though its outcome for them all was the same for practical purposes). For VCP it amounted to a review of interim duty under the provisions (s 269Z(2)) of Division 5 of Part XVB of the Act. For Nemo and Champion it amounted to a resumption under s 269TG(4) of the Act of the Minister's 1994 consideration of whether a dumping duty notice should be published. For the second respondent, Ripasa SA Celulose E Papel ("Ripasa"), which had not been the subject of a prior notice (cf VCP) and had not given a prior price undertaking (cf Nemo and Champion), the inquiry was a fresh one for the purposes of s 269TG of the Act.
On 12 December 1996 the ACS produced Dumping Report 96/016. It was submitted to the Minister who, in accordance with its recommendations, made the six decisions the subjects of this application. Their effect was that common, but in VCP's case a now higher, interim dumping duty was imposed on all four companies.
It has been necessary to indicate the differing ways in which the 1996 inquiry related to each of the four applicants for this reason. The case advanced by Nemo, Ripasa and Champion - VCP abandoned its particular claim during the hearing - is that by conducting a common inquiry in the way that he did without differentiating the particular statutory responsibility he had in relation to them, the Minister failed to follow the statutory procedures required by s 269TG(2) of the Act.
Put shortly, that alleged failure was this. The ACS and then the Minister made actual findings upon the particular matters (ie the "variable factors") to be inquired into in a Division 5 review of the rate of interim dumping duty. While such may have been appropriate for VCP, it resulted in the Minister failing to address the matters in respect of which he was required to be satisfied under s 269TG(2) before publishing a dumping notice affecting Nemo, Ripasa and Champion. In particular it is alleged, the Minister failed to address the requirement in s 269TG 2(b) that he be satisfied that "material injury" to the Australian industry was being caused or was threatened, because of the particular price differences specified in s 269TG (2)(a) which existed in the present case.
It will be necessary to consider in a little detail the inquiry and Custom's Report upon which the Minister acted. It is appropriate, though, to refer first to the statutory provisions that bear on this matter.
The Statute
There are four concepts defined and used in the Act that require brief explanation before reference is made to the few provisions around which this application revolves.
The concepts are as follows.
(i) Normal Value. This is defined in s 269TAC. While there is a variety of means that may be used to determine normal value, to put the matter somewhat inaccurately but adequately for present purposes, these are designed to allow a price to be ascribed for like goods sold for home consumption in the country of export, to those goods exported to Australia.
(ii) Export Price. This is defined in s 269TAB. Again a variety of bases are prescribed for determining the price of the relevant goods exported to Australia.
I would note in passing that, in determining whether dumping has occurred, the Minister is required to compare the export price of
the goods in question with their normal value: s 269TACB(1).
(iii) Material Injury. To again put the matter somewhat inexactly, for the purpose of s 269TG of the Act where the export price of goods is less than their normal price, the Minister is required to be satisfied before issuing a dumping notice that that difference has caused, is causing or will cause "material injury" to the Australian industry. Section 269TAE provides a non-exhaustive list of factors to which the Minister may have regard - cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40 - in determining "material injury" for the purposes of s 269TG.
(iv) Non-Injurious Price. In issuing a dumping notice under s 269TG the Minister must ascertain what at the time were the "normal value", "export price" and "non-injurious price" of the goods in question. For present purposes the "non-injurious price of goods exported to Australia is the minimum price necessary ... to prevent the injury ... referred to in paragraph 269TG (2)(b)": s 269TACA(a); ie its purpose is to neutralise "material injury", an actual finding of which it presupposes.
I would note in passing that, for present purposes, where the Act refers to "variable factors" it refers "to the normal value, export price and non-injurious price of goods ... as ascertained, or last ascertained ... by the Minister for the purpose of [a dumping] notice [already published]": s 269T(4E).
The particular provisions in issue in this application are s 269TG, and s 269Z and s 269ZC. Insofar as presently relevant s 269TG provides:
Dumping duties
269TG. (1) Subject to section 269TN, 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) because of that:
(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 in respect of any interim duty that may become payable on the goods under section 8 of the Anti-Dumping Act - 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 public notice, declare that section 8 of that Act 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) because of that, 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 public notice (whether or not he or she has made, or proposes to make, a declaration under subsection (1) in respect of like goods that have been exported to Australia), declare that section 8 of the Anti-Dumping Act 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.
(3) Where:
(a) a notice under subsection (1) declares particular goods to be goods to which section 8 of the Anti-Dumping Act applies; or
(b) a notice under subsection (2) declares like goods in relation to goods of a particular kind to be goods to which that section applies;
the notice must, subject to subsection (3A), include a statement of the respective amounts that the Minister ascertained, at the time of publication of the notice:
(c) was or would be the normal value of the goods to which the declaration relates; and
(d) was or would be the export price of those goods; and
(e) was or would be the non-injurious price of those goods.
(8) The acceptance by the Minister of an undertaking from an exporter does not prevent the exporter requesting the Minister to determine whether, had the undertaking not been accepted, the Minister would have published a dumping duty notice or would have decided not to publish such a notice.
(9) The Minister must, if an exporter makes such a request, and may, on his or her own initiative, determine whether he or she would have published a dumping duty notice or would have decided not to publish such a notice if the undertaking had not been accepted.
The following two sections presuppose that a dumping notice has been published. They are located in Division 5 of Part XVB, the concern of which is with reviewing the rate of interim dumping duty so imposed. Section 269Z(1) provides:
Circumstances in which review may be sought
269Z. (1) If:
(a) a dumping duty notice or a countervailing duty notice has been published in respect of goods; and
(b) an affected party considers that it is appropriate to review the rate of interim duty imposed on goods of that kind because one or more of the variable factors relevant to the determination of interim duty has changed;
the affected party may, by application lodged with the CEO, request a review of the rate of interim duty.
Where a review is undertaken s 269ZB sets out a timetable and procedure leading to the making by the Chief Executive Officer of Customs of a report to the Minister recommending:
(a) that the rate of interim duty remain as originally calculated; or
(b) that the rate of interim duty be altered;
and setting out the CEO's reasons for so recommending.
Section 269ZC(1) for its part provides, insofar as presently relevant, as follows:
Minister to consider recommendations
269ZC.(1) After considering the recommendation of the CEO and the reasons for that recommendation, the Minister must, subject to subsection (2) by notice in writing published in the Gazette:
(a) declare that, with effect from the day of publication of the notice, this Act and the Anti-Dumping Act are taken to have had effect as if the Minister had, in the dumping duty notice or countervailing duty notice, as the case requires, fixed each of the variable factors relevant to the determination of interim duty at the respective amounts specified in the notice;
and where the Minister does so, he or she must notify the applicant accordingly.
The Present Application
As I earlier noted, a dumping notice having been published in relation to VCP all that was in issue in relation to that company was a "review of interim duty" under the provisions of Division 5. For this reason it was entirely appropriate in its case to follow the procedures referred to in ss 269Z, 269ZB and 269ZC above.
Those procedures as such were not available to be utilised against Nemo, Champion and Ripasa as no notice had previously been issued against them.
In the case of Nemo and Champion they gave, and the Minister accepted in July 1994, a price undertaking specifying a minimum export price which they agreed their future exports would not fall below. In consequence of the 1996 inquiry reviewing anti-dumping measures on A4 copy paper from (inter alia) Brazil a renewed price undertaking at an upwardly revised level was sought. As stated in Dumping Report No 96/016, the report the Minister accepted and adopted in reaching the decisions presently under review (at p 37 thereof):
Advice was received from Nemo and Champion of Brazil stating that they did not wish to renew the price undertakings at the revised levels. Accordingly, it is recommended that the Minister resume consideration of this matter from the earlier deferral and publish a dumping duty notice under s.269TG(2) covering future exports of A4 copy paper from Brazil from these companies.
Though these two companies submitted to the contrary, it is clear on the wording of s 269TG(4) that any deferral of a decision to publish or not publish a dumping notice in consequence of an undertaking given and accepted is only "for so long as the Minister considers appropriate". And where, as here, the Minister after recommendation no longer considered it appropriate to continue the 1994 undertakings, he could properly then decide whether or not to publish a dumping notice. In other words, in the case of Nemo and Champion, a process begun in 1993/1994 was reactivated.
The principal claim made by Nemo and Champion is, simply, that because an operative dumping notice against them is to be published for the first time, the minister must under s 269TG(2) actually be satisfied in their cases that material injury is being occasioned to the Australian industry. They allege that neither the ACS nor, in consequence, the minister considered that matter; that such satisfaction was not manifest in Dumping Report No 96/016; that the acceptance of a price undertaking under s 269TG(4) did not of itself presuppose such satisfaction; and that the findings adverse to Nemo and Champion in the 1994 Anti Dumping Authority Report were stale ones for the purposes of founding such satisfaction in 1996.
Given the particular view I take of this matter it will only be necessary to consider the findings made in the Report No 96/016 that were relied upon by the minister. I would, though, wish to add without expressing a concluded view that where a price undertaking is accepted under s 269TG(4) a material injury finding under s 269TG(2) is presupposed. For such an undertaking to be given and accepted, and for the minister in consequence to defer the decision to publish or not publish a dumping notice covering the exporter in question, the circumstances must exist that authorise the making of that decision. As s 269TG(2) makes plain this will only be where the two conditions of "satisfaction" specified in s 269TG(2) are fulfilled. And where the case is one of a price undertaking, the s 269TG(2)(b) satisfaction must, one would have thought, necessarily have been that material injury "is being caused or is threatened". I would say that, contrary to the applicants' submission, I do not consider that s 269TG(8) and (9) have any bearing on this particular question. They address the distinct matter of whether a notice would or would not have been published had an undertaking not been accepted.
Ripasa's claim is substantially the same as that of Nemo and Champion. Not having been the subject of a previous inquiry, a s 269TG(2) material injury finding necessarily must be made against it and, it is alleged Report No 96/016 does not do so, hence the minister did not do so.
Before expressing my conclusions on these clauses it is necessary to refer to Report No 96/016 and its surrounding circumstances and to the minister's decision. I should note before so doing that the ACS itself in preparing that report seems to have entertained some doubt as to the precise legal basis for its resumed inquiry into Nemo and Champion - as witness their invocation (unnecessarily) of s 33(i) of the Acts Interpretation Act, 1901 (Cth). For present purposes it is sufficient to note that, whatever their mistake in this, they actually possessed such power: the Act, s 269TG(4) the operation of which has been explained above. For this reason no challenge has been made on grounds of lack of jurisdiction: cf Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 412 and the cases referred to therein.
The Dumping Duty Report No 96/016 and the Minister's Decision
On 6 September 1996 by notice in the Commonwealth Gazette and by advertisement in the Australian Financial Review, the ACS notified it was to undertake a review of interim duty on (inter alia) A4 copy paper exported from Brazil under s 269ZB and s 269ZC of the Act. Both the notice and the advertisement went on to indicate that -
The Australian industry has also sought to extend the coverage of the current company specific measures on exports of A4 copy paper to include new exporters that have emerged since the introduction of the existing measures. As these new exporters are not subject to the anti-dumping measures, the Customs' review will consider recommendations to change from the existing company specific measures to country measures.
The inquiry, in other words was from the outset not limited simply to a Division 5 review of interim duty. It had wider purposes even though, as I earlier noted, the ACS misapprehended how it brought Nemo and Champion within the inquiry's ken.
This said, the structure of Report No 96/016 was in the main built around the Division 5 review and the "variable factors" (ie export price, normal value and non-injurious price). This is unsurprising given both the history of the matter and that consideration was being given to a change from company specific measures to country measures. Nonetheless there are clear indications that the premise of the review - and of the imposition of dumping duty - was the occasioning of material injury to the Australian industry. This is evident in the general observations made especially in Ch 2 of the Report. I need not repeat these here.
Importantly, though, as a result of the 1993/1994 inquiry, a non-injurious price for Brazilian exports of A4 copy paper had been set. That price necessarily presupposed material injury would be caused by any exporter exporting at a lesser price. As a result of the 1996 Report that price was increased significantly and it was that price that was declared in relation to Nemo, Champion and Ripasa. While the Report may not, in express terms, have made separate and distinct findings that material injury was being occasioned by each of these companies, it clearly made findings that could only be made if such was the case and the ACS was well aware of this as I noted above. Equally, as I noted at the outset, s 269TACA(a) defines non-injurious price as "the minimum price necessary ... to prevent the injury ... referred to in paragraph 269TG(2)(b)": emphasis added.
Two additional comments should be made about the 1996 Report. First, as its Chapter 3 made plain, the Report was prepared against the background of the 1993/1994 inquiry and of the consequences (in terms of ministerial decision) flowing from the findings of Report No 119 of 1994. Secondly, in its consideration of the variable factors, the ACS based its findings on 1995-1996 materials, ie a contemporary assessment was made of these matters.
Turning briefly to the minister's decision. His "Statement of Reasons", having outlined the history of the matter from 1993, (i) indicated the scope of the review in terms reflecting the notice in the Gazette; (ii) acknowledged the recommendations made in Report 96/016; and (iii) identified the evidence he relied upon in making his decision. Those Reasons concluded as follows:
I accepted and adopted the findings of fact contained in the Report. I also accepted and adopted Customs' conclusions and its recommendations, as specified on pages 38 and 39 of the report and so signed each of the draft instruments provided by Customs to give effect to those recommendations.
Because of the minister's dependence on the Report, any vice in it would give rise to a corresponding vice in his own decision.
Conclusion
The applicants' complaint is not with the adequacy of the minister's (hence the ACS's) reasons for the decisions made. It is that the minister failed to follow the procedures required by s 269TG(2)(b) in that he was not satisfied that in 1996 material injury was being caused or threatened to the Australian industry.
It is the case that separate and explicit findings on that matter were not made against Nemo, Champion and Ripasa in Report 96/016. However, when one has regard to the scope and purpose of the 1996 inquiry, to its conduct in a setting in which a company specific dumping notice was already in place (with the findings that that presupposed) and to the reasons of the Report, that omission, if unfortunate, is of no particular moment.
While it is the case that the minister must have the requisite s 269TG(2)(b) "material injury" satisfaction before issuing a dumping notice, his decision, based as it was on Report 96/016, was redolent of his having been so satisfied. That Report clearly manifested an awareness of the need for such satisfaction. What it found (especially in relation to non-injurious price) and what it recommended were obviously premissed upon that satisfaction. In my view, in the particular circumstances of this case, so clearly were the requirements of s 269TG(2) found to be satisfied in 1996 that it went without saying.
Decision making is a function of the real world - cf Enichem Anic SrL v Anti-Dumping Authority [1992] FCA 579; (1992) 39 FCR 458 at 469. Where there can be no reasonable basis for misapprehending how a decision was arrived at and the foundations of it, and where these bespeak a lawful and regular decision, it is both unreasonable and unrealistic to require the decision maker to resort to statements of the obvious so as to dispel any possible doubt that he or she might have misunderstood his or her statutory responsibilities.
I do not consider that Nemo, Champion or Ripasa have made out their challenge to the minister's decision.
Additional Grounds
At the hearing the applicants were given leave to add two further grounds of review. These were:
GROUND 2A - Wednesbury unreasonableness
The Minister wholly unreasonably failed to investigate whether or not there had been a change of circumstance which may affect the question whether material injury to Australian industry producing like goods had been or was being caused or was threatened.
GROUND 2B - Failure to consider relevant consideration
The Minister failed to consider the application of sections 269TAE or material injury under s 269JG(2) in determining that a notice should be issued pursuant to s 269TG(2) in respect of the first, second and third applicants.
I need say little about these. Both, in substance, stand or fall with the challenge I have already rejected. As to the Wednesbury unreasonableness claim, I have already held that Report 96/016's consideration of the "variable factors" (including non-injurious price) was based on 1995/1996 materials. That of itself would conclude this claim against the applicants. The particular matter relied upon by them to suggest a "change of circumstances" was the 1993 merger of two Australian papermakers that produced a monopoly in the Australian industry. Of this I would merely note that even the 1993/1994 inquiry was aware of this merger and made its recommendations notwithstanding it.
As to the relevant considerations ground, apart from again noting that the matters referred to in s 269TAE were not ones the minister was required to take into account, I have found that the minister was satisfied as required by s 269TG(2).
I would dismiss the application with costs.
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I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice
Finn |
Associate:
Dated: 18 December 1997
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Counsel for the Applicant: | C Comans |
| Solicitor for the Applicant: | Colquhoun Murphy |
| Counsel for the Respondent: | S Gageler |
| Solicitor for the Respondent: | Australian Government Solicitor |
| Date of Hearing: | 17, 18 November 1997 |
| Date of Judgment: | 19 December 1997 |
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