Orica Ltd & Ors v Anti-Dumping Authority & Anor [1998] FCA 629 (10 June 1998)

Last Updated: 12 June 1998

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - Anti-dumping provisions - Decisions of Anti-Dumping Authority and Minister against imposition of dumping duties - Whether decisions invalid in law - Decisions made after second report of Anti-Dumping Authority updating an earlier report that contained an erroneous finding - Failure of Authority to take account of most recent information regarding shipments - Whether this failure could have materially affected decision - Effect of failure to reconsider other issues - Whether decision invalid for unreasonableness.

Customs Act 1901 , Part XVB

ORICA LIMITED, AUSEON LIMITED and AUSTRALIAN VINYLS CORPORATION LTD

v THE ANTI-DUMPING AUTHORITY and THE MINISTER FOR CUSTOMS AND CONSUMER AFFAIRS

NG710 of 1997

judge: wilcox j

place: sydney

date: 10 june 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG710 of 1997

BETWEEN:	ORICA LIMITED First Applicant AUSEON LIMITED Second Applicant AUSTRALIAN VINYLS CORPORATION LTD Third Applicant
AND:	THE ANTI-DUMPING AUTHORITY First Respondent THE MINISTER FOR CUSTOMS AND CONSUMER AFFAIRS Second Respondent
JUDGE	WILCOX J
DATE OF ORDER:	10 JUNE 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for review be dismissed.

2. The applicants pay the respondents' costs of the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG710 of 1997

BETWEEN:	ORICA LIMITED First Applicant AUSEON LIMITED Second Applicant AUSTRALIAN VINYLS CORPORATION LTD Third Applicant
AND:	THE ANTI-DUMPING AUTHORITY First Respondent THE MINISTER FOR CUSTOMS AND CONSUMER AFFAIRS Second Respondent

JUDGE	WILCOX J
DATE:	10 JUNE 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J: This is an application, under the Administrative Decisions (Judicial Review) Act 1977 , for review of two decisions made under the Customs Act 1901 . The first decision is that of the first respondent, the Anti-Dumping Authority ("the ADA"), to recommend to the second respondent, the Minister for Customs and Consumer Affairs, that he be not satisfied that the dumping of polyvinyl chloride homopolymer resin ("PVC") from Belgium and Korea has caused, and threatens to cause, material injury to the Australian industry and to decide not to publish notices in respect of that PVC under s 269TG(1) and (2) of the Customs Act. The second decision under challenge is that of the Minister to accept the recommendations and not publish the notices.

The facts

The relevant facts are uncontroversial. They mostly appear from documents. Many are admitted in the respondent's Amended Defence to the applicants' Further Amended Statement of Claim.

Until 31 July 1997, the first and second applicants, Orica Limited and Auseon Limited, were Australian manufacturers of PVC. At that time Orica was called ICI Australia Operations Pty Ltd. It is referred to in the ADA documents as "ICI" and I will follow the same course. On 31 July 1997 the manufacturing operations of ICI and Auseon were taken over by the third applicant, Australian Vinyls Corporation Ltd, a company owned by ICI and Auseon's parent company.

On 19 March 1996, while they were still directly carrying on manufacturing operations, ICI and Auseon lodged with the Australian Customs Service ("ACS") an application for the imposition of anti-dumping duties against exports of PVC from Belgium and Korea to Australia. On 5 July 1996 the Chief Executive Officer of Customs issued a preliminary finding report on that application containing the following, amongst other, conclusions:

"(a) PVC had been exported from Belgium and Korea to Australia at dumped prices;

(b) the Australian industry suffered material injury as a result of export of PVC from Belgium and Korea at dumped prices;

(c) there was a threat of further material injury if the dumped exports continued, and

(d) there were sufficient grounds for the publication of a dumping duty notice in respect to PVC exported from Belgium and Korea to Australia."

Pursuant to s 269TD(2)(b) of the Customs Act, the Chief Executive Officer referred to the ADA the question whether the publication of a dumping duty notice in respect of those exports was justified.

On 8 November 1996 the ADA forwarded to the Minister for Small Business and Consumer Affairs ("the Previous Minister"), who then had responsibility for the Customs Act 1992 , a report on the reference identified as Report No. 158. Adopting the words of the allegations in para 11 of the applicants' Further Amended Statement of Claim, admitted by the respondents, in that report the ADA:

"(a) found that PVC had been exported at dumped prices from Belgium and Korea to Australia;

(b) found that the Australian industry had suffered material injury;

(c) stated that the ADA was not satisfied that dumping of PVC from Belgium and Korea had caused material injury to the local industry;

(d) stated that the ADA was not satisfied that Australian industry was threatened with material injury from future dumping of PVC from Belgium and Korea;

(e) recommended that the Previous Minister be not satisfied that dumping of PVC from Belgium and Korea caused or threatened to cause material injury to the Australian industry;

(f) recommended that the Previous Minister decide not to publish notices under subsections 269TG(1) and (2) of the Customs Act in respect of PVC exported from Belgium and Korea to Australia"

On 19 February 1997 the Previous Minister adopted the recommendations in paras (e) and (f) and decided not to publish notices under s 269TG(1) and (2) in respect of PVC exported from Belgium and Korea to Australia.

ICI and Auseon were unhappy about that decision. On 18 March 1997 they instituted a proceeding in this Court (NG200 of 1997) in which they asserted the decisions made by the ADA and the Previous Minister were based upon a particular fact that did not exist (see s 5(1)(h) and s 5(3)(b) of the Administrative Decisions (Judicial Review) Act ). The challenged finding was a statement in Report No. 158 that the export prices of imports from countries not subject to anti-dumping measures were lower than the export prices of Korean PVC during the first half of 1995-96.

The ADA and the Previous Minister accepted this statement was erroneous. On 15 May 1997 Davies J made consent orders setting aside the decisions in relation to Report No. 158 and remitting the subject matter of those decisions to the ADA and the Previous Minister to be determined according to law.

On the following day, 16 May, Sabesh Shivasabesan, a Project Manager employed by the ADA, wrote letters to all the parties who had been involved in the inquiry that culminated in Report No. 158 (including ICI and Auseon). He advised them of the consent orders and the reason therefor. He said:

"The Authority is now reconsidering its recommendations to the Minister. The background to this reconsideration is explained in the attached paper.

If you wish to make a submission, please do so by 30 May 1997. Any confidential submission should be accompanied by a non-confidential version for placement on the public file."

Three days later Mr Shivasabesan sent to all the parties to the earlier inquiry copies of a document called "Background Paper Reconsideration of the Inquiry into PVC from Belgium and the Republic of Korea". This document discussed in greater detail the error in Report No. 158 and explained it occurred because, in making its comparison with Korean PVC export prices, the ADA omitted several countries not subject to anti-dumping measures. Some of these omitted countries had occasional export prices greater than those of Korea. The Background Paper included, by way of attachment, a revised schedule that included the omitted countries. The Paper went on:

"The Authority is seeking comments from interested parties on the likely impact of this error on the Authority's conclusions in Report no. 158. To assist parties in their consideration of the revised schedule, the Authority would make the following observations:

. there were quite a few instances where Korean prices were lower than other countries - in particular, for prices of exports from South Africa;

. the Authority understands that prices from South Africa may need to be adjusted; if so, more information will be provided in the Further Statement of Essential facts (discussed below);

. there is something decidedly odd about the average unit price of $0.23 for shipments from India in May 1996; this will also be looked into and amended if necessary;

. with the exception of prices of South African exports, Korean prices in the second six months (ie January - June 1996) were, on average, higher than exports from all other sources;

. the weighted average price from all other sources was lower than Korea's for the year as a whole ($0.87 of $1.05); and

. the figures are export prices to Australia and not selling prices in Australia.

The Authority would welcome comments on this matter - and, of course, on any other matter which parties may wish to raise - by COB 30 May 1997. While waiting for comments, the Authority will also undertake an analysis of import trends since June 1996, given the time that has elapsed since the Authority's earlier analysis.

Once the Authority has completed that analysis and received and considered submissions from interested parties, it will issue a Further Statement of Essential Facts. This statement will draw on the information provided by parties, together with any other relevant information that the Authority has to hand. Parties will be given seven days to comment on the statement. The Authority will then finalise its report and forward it to the Minister.

Since the reconsideration goes essentially to one issue, the Authority does not expect the process to be a lengthy one. It intends to report to the Minister within about five to six weeks from the date of sending this paper to interested parties."

On 19 June 1997, as promised in this extract, the ADA issued a further Statement of Essential Facts. Copies of this document were sent to all parties to the original inquiry, including ICI and Auseon. The document referred to the ADA's obligation to place on the public record a statement of essential facts on which it proposes to base its report and said the statement "should be read in conjunction with the Authority's Report No. 158 and the statement of essential facts issued in October 1996 which formed the basis of that Report". The document went on to invite submissions on or before 26 June 1997 and to state:

"The Authority may disregard any submission received after that date.

The Authority will commence to prepare its report to the Minister on 27 June 1997."

In the statement, the ADA referred again to the error in Report No. 158 and discussed exports from South Africa and India. It gave reasons why the South African exports should be disregarded and revealed that the previously-quoted price of the Indian exports ($0.23 per kg) was wrong; it should have been $0.85 per kg. In relation to Belgium and Korea, the ADA said "[t]here have been no imports from Belgium since January 1996 and there have been no imports from Korea since April 1996".

The ADA then set out the following correction of its statement in Report No. 158:

"About 11 countries, which are not subject to measures, exported PVC to Australia during 1995-96. The Authority was unable to identify the countries of export of three shipments of PVC totalling about 96 tonnes.

The Authority compared the export prices of Korean PVC to Australia with the export prices of PVC from countries not subject to anti-dumping measures and found the following.

. Korean export prices were higher on some occasions but were lower on others.

. Overall, during 1995-96, the weighted average price of Korean exports was slightly lower than the weighted average export price of all the countries not subject to measures.

- During the six months to December 1995, the weighted average Korean export price was significantly lower than the weighted average price from countries not subject to measures.

- During the six months to June 1996, Korean export prices (before rounding) were higher than export prices from countries not subject to measures."

A schedule of imports from countries not subject to anti-dumping measures during 1995-96 was attached. The schedule indicated instances where Korean export prices undercut export prices of countries not subject to measures and instances where the reverse situation occurred.

On 26 June 1997, the last day for submissions, John O'Connor of ICI and Rob Faulkner of Auseon wrote to Mr Shivasabesan requesting confirmation that the ADA's redetermination "will include consideration of exports of PVC from Korea, Belgium and other countries occurring between June 1996 and the date of the Authority's recommendation to the Minister". They said this request was prompted by advice from their solicitors, a copy of which they attached. That advice referred, amongst other matters, to ICI's submission to the ADA of 30 May 1997 in which it provided information as to offers of Korean PVC for delivery in May/June 1997.

On 27 June another company wrote to the ADA enclosing information about three shipments, totalling 1,010.5 tonnes, from Korea that had arrived between April 1997 and that day and two shipments, totalling 1,015 tonnes, expected in July.

On 2 July 1997 Mr Shivasabesan wrote to all interested parties enclosing a schedule of imports of PVC between July 1996 and May 1997, detailing volumes and prices. The schedule distinguished between countries under anti-dumping measures and those not under measures. There was no indication of any imports from Belgium. In relation to Korea, the schedule did not detail individual shipments but stated: "There were several shipments from Korea totalling about 1,700 tonnes from July 1996 to June 1997. The average price was approximately $1/kg". Having regard to the fact that Korean imports from July 1996 to 31 March 1997 totalled 660 tonnes, it appears the figure of 1,700 tonnes included the three shipments up to 27 June referred to in the previous paragraph of these reasons; but Mr Shivasebesan made no reference to the 1,015 tonnes expected in July.

Petri Povel, an ADA staff member, prepared spread sheets analysing the sources of PVC sold in Australia from 1 July 1992 to 31 March 1997. The analysis was made on a quarterly basis but financial year totals were also extracted. Considered on a quarterly basis, the market share of the local industry (that is, ICI and Auseon) ranged from 65% to 95% during this period. In only two quarters (quarter 4, 1994 and quarter 1, 1995) did it fall below 80%. Considered on an annual basis, the local industry market share was:

-93 - 88%

1993-94 - 89%

1994-95 - 77%

1995-96 - 91%

1996-March 97 - 85%

The spread sheets also showed the break-up, between exporting countries, of that proportion of the Australian market that was not held by the local industry. In percentage terms Belgium reached double figures in only two quarters (quarter 4, 1995 and quarter 1,1996). Korea provided 12% of Australian imports in each of two quarters in 1993, 15% in the fourth quarter of 1993, 21% in the first quarter of 1994, 42% in the fourth quarter of 1995 and 30% in the first quarter of 1996. Korea's quarterly total market share once reached 5% but, on an annual basis, Korea's highest reading was 2% in 1995-96. The spread sheet showed only 660 tonnes being imported from Korea between 1 July 1996 and 31 March 1997. This figure constituted 0.49% of the total Australian market.

Mr Shivasabesan examined the spread sheets. According to his affidavit evidence, he noted:

"the level of imports from Belgium and Korea and that their combined market share was less than one per cent for the nine months ending March 1997. I was also satisfied that the small volume of PVC imports from Belgium and Korea during the first nine months of 1996-97 could not have caused material injury to the Australian PVC industry irrespective of the level of dumping."

Mr Shivasabesan discussed his view with Mr D J Fraser, the sole ADA Member. He said Mr Fraser agreed with him. Mr Fraser did not give evidence. He suffered a heart attack in September 1997 and is on indefinite sick leave.

On 21 July 1997 the ADA forwarded to the Minister - that is, the respondent, the Minister for Customs and Consumer Affairs - its Report No. 174. It recommended the Minister not be satisfied that dumping of PVC from Belgium and Korea has caused, and threatens to cause, material injury to the Australian industry and decide not to publish notices under s 269TG(1) and (2) of the Customs Act in respect of PVC exported from Belgium and Korea to Australia. On 1 August 1997 the Minister accepted these recommendations. These decisions are the subject of this proceeding.

The issues

Counsel for the applicants, Mr Mark Speakman, argues the ADA erred in two respects: failing to consider the up to date position in relation to exports of PVC from Korea to Australia and material injury; and making a decision so unreasonable that no reasonable person could make that decision. The respondents' counsel, Mr Stephen Gageler and Mr S B Lloyd, dispute both these contentions. I will deal with them separately.

Failure to consider up to date position

In relation to the ADA's obligation to have regard to the most recent available information, Mr Speakman refers to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 30 and 45 and Century Metals and Mining NL v Yeomans [1989] FCA 273; (1989) 40 FCR 564 at 600. These cases affirm the principle that an administrative decision must be based on the most recent factual material reasonably available to the decision maker. The ADA ignored that principle, according to Mr Speakman, because it failed to take into account the two shipments of PVC from Korea landed, or expected to be landed, during July 1997. Mr Speakman says the ADA was alerted to these shipments on 27 June 1997. He points out the ADA could have verified the expected importations, through the ACS data base TRACE, before its report to the Minister on 21 July. Under cross examination Mr Shivasabesan said he was aware of the forecast July shipments when he prepared Report No. 174. He could not recall whether he drew them to Mr Fraser's attention. There was no reference to them in Report No. 174; the Minister was not made aware of them.

Mr Speakman says. if the ADA had taken account of the July 1997 exports of PVC from Korea, it would have seen that, in July 1997, imports from Korea were running at an annual rate of 12,180 tonnes, compared with only about 1,700 tonnes in the whole of 1996-97; it would have realised its conclusion that there were no significant changes in import trends was unsafe.

Secondly, Mr Speakman criticises the ADA's failure to update its conclusions about material injury. In Report No. 174 the ADA found an absence of causation of material injury, but Mr Speakman argues it could not logically do this without first identifying the material injury suffered by the Australian industry. He says, in updating Report No. 158, it was not enough to consider whether there were any "significant changes in import trends"; it was necessary also to determine whether there were any significant changes in other factors, such as "international effects" of the kind referred to in Report No. 158 or reduced local demand, that might cause material injury.

Counsel for the respondents offer three answers to Mr Speakman's point about the July shipments. First, they say, the shipments were taken into account. Mr Shivasabesan gave evidence the shipments were noted by him; but he thought they "did not indicate a significant change in the pattern of imports". Counsel say this view is encompassed within the statement in Report No. 174 that "an analysis of import trends since the last inquiry revealed no significant changes in import trends".

Second, counsel say the ADA and the Minister were not bound to take the July shipments into account. The ADA had told parties it would commence to prepare its report on 27 June and submissions received after 26 June might be disregarded. "In the absence of compelling reasons to change", counsel say, "the ADA was entitled to act in accordance with that publicly notified approach and to rule off the information gathering phase of its inquiry on 26 June 1997".

Finally, counsel for the respondents argue the two shipments were not so significant that failure to take them into account could have materially affected the recommendation of the ADA or the decision of the Minister. In that connection they refer to a subsequent analysis showing the market share of Korean imports for the period April to December 1997 was 2.25%, a figure consistent with the comment in Report No. 158 that "since 1992-93, Korean PVC's share of the local market never exceeded 3 per cent in any financial year".

In connection with the applicants' complaint of ADA's failure to update its information about material injury, counsel for the respondent point out the circumstances under which a decision will be invalid for failure to inquire are strictly limited. They refer to Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169-170, Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 289-290 and C A Ford Pty Limited v Comptroller-General of Customs [1993] FCA 560; (1993) 46 FCR 443 at 449. They also quote from the judgment of Hill J in Enichem Anic Srl v Anti-Dumping Authority [1992] FCA 579; (1992) 39 FCR 458 at 469:

"Decision-making is a function of the real world. A decision-maker is not bound to investigate each avenue that might be suggested to him by a party interested. Ultimately, a decision-maker must do the best on the material available after giving interested parties the right to be heard on the question."

In Vredelco Food Industries Pty Limited v Anti-Dumping Authority (11 October 1994, unreported) Neaves J commented this passage applied a fortiori where the matter sought to be relied upon in the course of judicial review was not raised as an issue before the decision maker. Counsel for the present respondents say:

"The ADA made clear in its letter of 16 May 1997 that in its reconsideration of the subject-matter of Report No 158 it was proposing to focus specifically on the error it had identified but that it was inviting submissions on any matter a party may have wished to bring to its attention: ... Its statement of essential facts on 19 June 1997 made clear that the ADA was proposing to rely on its findings of fact in Report No 158 save for the correction of the error and again submissions were invited: ... The only issue raised by the First and Second Applicants, concerning exports since June 1995, was specifically taken up and addressed by the ADA: ... In the absence of other issues being raised by interested parties, the ADA was entitled to treat its earlier findings as continuing to be applicable."

I do not accept the first or second answer offered by the respondents to the applicants' complaint of failure to consider the up to date position in relation to volumes of PVC shipments from Korea. Although I believe the evidence of Mr Shivasabesan that he considered the significance of the projected July shipments when drafting Report No. 174, he was not able to say information about these shipments was placed before Mr Fraser, the sole member of the ADA. In relation to the ADA's decision to make the recommendations contained in Report No. 174, the critical consideration was that of Mr Fraser, not Mr Shivasabesan. In relation to the Minister, it is clear he had no information beyond that contained in the report. This did not include information about the July shipments.

So far as the second contention is concerned, I agree the information that a decision maker is bound to take into account is limited to what was reasonably available to him or her at the time of the decision. But the evidence establishes that information about the July shipments was available, on the TRACE data base, at the time of preparation of Report No. 174. Even though the time for submissions had expired, there was no reason why this information could not have been included in the report.

However, it seems to me counsel's third answer is an acceptable response to this submission. Although it is true, as a matter of arithmetic, that the effect of the July shipments was that Korean PVC exports were running during that month at an annualised rate of 12,180 tonnes, this is a meaningless statistic. Given the intermittent nature of PVC shipments to Australia, it is absurd to extrapolate an annual rate from figures relating to a single month. This can readily be seen from consideration of a document tendered by the applicants, as revised uncontentiously by the respondents, that gives information about PVC importations into Australia during the six month period from 1 July to 31 December 1997. This document shows the July shipments accounted for the bulk of Korean PVC exports (2,287 tonnes) to Australia in the whole of that six month period. Although Korea was one of the largest exporters to Australia in that period, it accounted for only 24% of exports from countries not subject to anti-dumping measures. Moreover 85% of the exports from other countries not subject to anti-dumping measures were at average FOB prices lower than the average Korean FOB price. The document does not reveal total industry sales in the period July to December 1997, but if they were of the same order of magnitude as over the previous four years (approximately 90,000 to 100,000 tonnes per year) Korean exports would have captured only about 4-5% of the market. Taking the whole 1997 calendar year, it seems Korean exports to Australia amounted to 3,337 tonnes, about 3% of the total market.

In Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 40 Mason J commented:

"Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision ..."

This is such a case. The failure of the ADA and the Minister to take into account the July shipments from Korea could not rationally have affected their decision. They did not indicate a pattern of importations from Korea significantly different from the past pattern.

In relation to the ADA's failure to consider the up to date position concerning causation of material injury, I adopt the submissions of counsel for the respondents. The conclusions expressed in Report No. 158 were subjected to re-examination because of a particular error in that report. That error was not related to the matter of causation. Naturally enough, both the ADA and the persons who made submissions at the re-examination stage focused on the error and its ramifications. Nobody suggested to the ADA a need to revisit its conclusions about absence of causation of material injury. In that situation, it is not to be criticised for having failed to do so.

Unreasonableness

In support of this ground, Mr Speakman refers to twelve findings of fact made by the ADA:

"(a) Although other causes were determined by the ADA to be `more important', competition from imports from Belgium and Korea was one of several factors which `caused' the injury suffered by the local industry.

(b) The `presence of low priced imports from countries not subject to measures' contributed to price effects (price depression and price suppression) on the local industry.

(c) `Overall, during 1995-96, the weighted average price of Korean exports was slightly lower than the weighted average export price of all the countries not subject to measures' namely $0.92 per kg compared with $0.96 per kg.

(d) `During the six months to December 1995, the weighted average Korean export price was significantly lower than the weighted average price from countries not subject to measures' namely $0.91 per kg compared with $1.14 per kg.

(e) The market share of Korean PVC increased sevenfold in 1995-96 compared with 1994-95 from negligible levels to almost 2 percent of the total market.

(f) The market share held collectively by countries not subject to measures other than Belgium and Korea decreased to 3 percent in 1995-96 compared with 6 percent in 1994-95.

(g) Exports from Korea represented over 70 percent of exports of PVC to Australia from all countries not subject to measures in the period July-December 1995.

(h) Exports from Korea represented about 49 percent of exports of PVC to Australia from all countries not subject to measures (and the largest single course of those exports) for the year 1995-96.

(i) In the financial year 1995-96 by far the greatest proportion of the fall in the applicants' prices for PVC on the Australian market occurred in the first half of that financial year.

(j) In the financial year 1995-96 all of the fall in export prices of PVC from Korea occurred in the first half of that financial year and these falls were substantial.

(k) Dumping margins for Korean imports were `significant' namely 18 to 34 percent.

(l) In 1995-96, selling prices of Korean PVC generally undercut the local industry's selling prices."

Mr Speakman says that, in the circumstances of those findings, the decision by the ADA to recommend the Minister not be satisfied, and the decision by the Minister not to be satisfied, that the dumping of PVC from Belgium and Korea had caused, or threatened to cause, material injury to the Australian industry were decisions so unreasonable that no reasonable person could have so decided. Having found that dumping by non-regulated countries was a cause of injury, Mr Speakman argues, it was unreasonable of the ADA (and so the Minister) to disregard the contribution to that injury of the highest volume dumper, Korea. He refers in particular to the period July-December 1995 during which an expansion in Korean exports to Australia coincided with a fall in prices on the Australian market.

Counsel for the respondents emphasise other ADA findings: since 1992, Korean exports have accounted for only a tiny proportion of the Australian market, never exceeding 3% in any financial year; the prices of Korean imports only occasionally undercut the average prices of Australian producers; the volume of imports from other countries not subject to anti-dumping measures was generally greater than the volume of imports from Belgium and Korea; and imports from the other countries sometimes sold at prices lower than the prices of Korean products. They say the question whether there is a causal link between dumping and material injury is a question of fact and degree requiring application of judgment; the ADA reached its conclusion after a detailed consideration of the whole of the relevant material, applying the experience it had gained in conducting numerous similar inquiries into alleged PVC dumping.

Unreasonableness is a ground of challenge to administrative decisions that is often invoked but rarely established. It is not enough that the court undertaking judicial review might feel it would have made a different finding of fact. It must be persuaded the administrative decision under challenge was perverse, "so devoid of any plausible justification that no reasonable body of persons could have reached" it: see per Lord Diplock in Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821. Most of the relatively few cases that succeed on the ground of unreasonableness do so because of a fault in the logic applied by the decision maker; so that the decision became irrational in the literal sense of that word. It is extremely rare for decisions to be held invalid on the ground of unreasonableness where there is no fault in the adopted logic but the court merely disagrees with the weight applied by the decision maker to particular factors. Yet that is the basis of the present applicants' claim of unreasonableness.

I appreciate the force of Mr Speakman's submissions concerning 1995-96. If the ADA had reached the opposite conclusion about causal connection in relation to that year, it might have been possible to justify that conclusion. Although it appears the local industry increased its market share during that year, this was upon reduced overall sales volume. It also appears there was a reduction in PVC prices during that period and reduced profitability in the local industry. Any escalation in the level of imports from a particular country, at such a time, would tend to increase pressure on the local industry. And it is correct to say that in 1995-96 Korea was the leading exporter to Australia of all non-regulated countries.

However, these considerations do not mean the ADA's conclusions about cause of material injury were unreasonable. Even in 1995-96, the market share of Belgian and Korean imports was still only about three percent. It was a matter for judgment whether such a small volume of imports made a significant contribution to the price depression that the ADA found the local industry sustained. In making that judgment, it was necessary for the ADA to consider more than raw prices. It seems PVC prices vary according to the size of the particular order. The ADA looked at that matter. It reported to the Minister that, when 1995-96 individual consignment prices were compared, it found "Belgian prices never undercut, and Korean prices only occasionally undercut" the average prices of the Australian producers.

I think it is clear there was no connection between the dumping of Belgian PVC and material injury to the Australian industry. The situation in relation to imports from Korea is less clear. I have not attempted to form a definite view about that question. It is not relevant for me to do so. But I have formed a definite view that the question is one about which people might reasonably differ. Once that is said, it is apparent the ground of unreasonableness must fail.

Orders

In my opinion neither of the applicants' grounds of challenge are established. The proceeding should be dismissed with costs.

I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated: 10 June 1998

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Counsel for the Applicant:	M Speakman
Solicitor for the Applicant:	C G Gillis & Co
Counsel for the Respondent:	S Gageler and S B Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 May 1998