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Federal Court of Australia |
Last Updated: 18 January 2000
PT Pabrik Kertas Tjiwi Kimia Tbk v Minister for Justice & Customs [2000] FCA 18
ADMINISTRATIVE LAW - customs - anti-dumping - price undertaking given by Indonesian exporter of A4 copy paper - period for which undertaking endured.
ESTOPPEL - estoppel by representation - estoppel by convention - whether administrative decision-makers estopped from denying that undertaking expired on a certain date.
ADMINISTRATIVE LAW - delay by Minister in making a decision - whether delay "unreasonable".
Customs Act 1901 (Cth), S 269TAC, s 269TAC(14), s 269TAJ(3), s 269TG, s 269TG(1), s 269TG(2), s 269TG(4), s 269TG(5), s 269TG(6), s 269TG(6)(d), s 269TG(7), s 269TM(2), s 269TM(7), s 269ZA, s 269ZC, s 269ZD, s 269ZDA, s 269ZDA(1)(b), s 269ZDB, s 269ZDB(1), Division 5 of Part XVB
Customs Tariff (Anti-Dumping) Act 1975 (Cth), s 8
Customs Legislation (Anti-Dumping Amendments) Act 1998 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 7, s 7(1)
Australian Paper Ltd v Anti-Dumping Authority (1998) 157 ALR 575 considered
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 followed
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 considered
Brickworks Ltd v Council of the Shire of Warringah [1963] HCA 18; (1963) 108 CLR 568 referred
Giumelli v Giumelli (1999) 161 ALR 473 referred
Thorby v Goldberg [1964] HCA 41; (1964) 112 CLR 597 referred
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd [1986] HCA 14; (1986) 160 CLR 226 referred
Elsea Holdings Ltd v Butts (1986) 6 NSWLR 175 referred
Government Employees Superannuation Board v Martin (1997) 19 WAR 224 referred
Riseda Nominees Pty Ltd v St Vincent's Hospital (Melbourne) Ltd [1998] 2 VR 70 referred
Keen v Holland [1984] 1 All ER 75 referred
Considine v Citicorp Australia Ltd [1981] 1 NSWLR 657 referred
ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564 referred
Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 referred
Thornton v Repatriation Commission (1981) 52 FLR 285 discussed
Re O'Reilly; Ex parte Australena Investments Pty Ltd (1983) 58 ALJR 36 referred
PT PABRIK KERTAS TJIWI KIMIA TBK v MINISTER FOR JUSTICE AND CUSTOMS & ORS
N 1173 OF 1999
FINN J
CANBERRA (HEARD IN SYDNEY)
18 JANUARY 2000
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
1. the revised price undertaking given by the applicant on 7 July 1997 and accepted by the then Minister of State for Customs and Consumer Affairs on 30 July 1997 expired on 3 February 1999.
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 |
JUDGE: |
FINN J |
DATE: |
18 JANUARY 2000 |
PLACE: |
CANBERRA (HEARD IN SYDNEY) |
1 It is regrettable that it was necessary for the applicant, PT Pabrik Kertas Tjiwi Kimia Tbk ("Kimia"), to institute this proceeding. There is some substance in Kimia's grievance as to the manner in which the dumping provisions of the Customs Act 1901 (Cth) have been administered in its case. Kimia's application seeks a declaration that a revised price undertaking it gave on 7 July 1997 and that was accepted by the first respondent, the Minister for Justice and Customs ("the Minister") on 30 July 1997 in accordance with the provisions of s 269TG of the Customs Act, expired on 3 February 1999. In the alternative judicial review is sought of the Minister's failure to make a decision on the report of the second respondent, the Chief Executive Officer, Australian Customs Service ("the CEO"), of May 1999 made pursuant to s 269ZDA of the Customs Act following a review of the revised price undertaking given by Kimia on 7 July 1997. Kimia is an Indonesian company that manufactures and exports A4 copy paper to Australia.
The Statutory Setting
2 It is unnecessary to describe the scheme of Part XVB of the Customs Act and of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) ("the Dumping Duty Act") in relation to the dumping of goods in Australia. For present purposes it suffices to say that dumping occurs where an overseas manufacturer sells goods to an Australian importer at a price which is less than the price at which it sells like goods in the ordinary course for home consumption in the country of export.
3 Under s 269TG(1) and (2) of the Customs Act the Minister, if satisfied that dumping of goods has occurred and that in consequence material injury or threatened injury to an Australian industry producing like goods has been established, may issue a notice declaring that s 8 of the Dumping Duty Act applies to those goods. Publication of such an "anti-dumping" notice has the effect of imposing a special duty of customs on those goods pursuant to the Dumping Duty Act.
4 Relevantly for the present application s 269TG(4) provides:
"(4) Whether or not a notice has been given to an exporter, the Minister may defer the decision to publish or not to publish a dumping duty notice covering that exporter, for so long as the Minister considers appropriate, if the exporter offers, and the Minister accepts, an undertaking that the exporter will so conduct future trade to Australia in like goods as to avoid:(a) causing or threatening material injury to an Australian industry producing like goods; or
(b) materially hindering the establishment of such an Australian industry."
If an undertaking is accepted the Minister is required "[to] give public notice of [the] undertaking so accepted": s 269TG(6)(d).
5 As to the duration of an undertaking, s 269TM(2) provides:
"(2) Where an undertaking is entered into after section 17 of the Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act 1992 commences under a relevant undertaking provision in respect of goods of a particular kind, that undertaking expires 5 years after the day on which it was entered into unless provision is made for its earlier expiration."
I simply note in passing that s 269TG(4) is a "relevant undertaking provision" for the purpose of this provision: s 269TM(7).
6 Until its repeal by the Customs Legislation (Anti-Dumping Amendments) Act 1998 (Cth), s 269TAJ(3) allowed the Minister, by public notice, to release or partly release a person from an undertaking entered into under Part XVB of the Customs Act. Distinctly, Division 5 of Part XVB allows affected parties to apply for review of anti-dumping measures (including undertakings). The scheme of that Division requires the CEO within a prescribed period to give the Minister a report recommending the course that should be taken in relation (inter alia) to an undertaking in accordance with what is permissible under the Act: s 269ZDA(1)(b).
7 Section 269ZDB provides insofar as presently relevant that:
"(1) After considering the report of the CEO and any other information that the Minister considers relevant, the Minister must declare, by notice published in accordance with subsection (7), that for the purposes of this Act and the Dumping Duty Act:
...
(b) to the extent that the anti-dumping measures concerned involved the acceptance by the Minister of an undertaking:
(i) that the undertaking is to remain unaltered; or
(ii) that if, before a date specified in the declaration, the terms of the undertaking are altered in a manner specified in the declaration, the undertaking as so varied will be acceptable to the Minister; or
(iii) that the undertaking is no longer acceptable to the Minister and that the investigation of the need for a dumping duty notice or a countervailing duty notice is to be resumed immediately; or
(iv) that, with effect from a date specified in the declaration, the person who gave the undertaking is released from the undertaking and that the investigation giving rise to the undertaking is terminated."
8 The application raises two discrete issues each with its own factual context, the one relating to the content of the undertaking entered into on 30 July 1997; the other, to the events that have (and have not) occurred subsequent to Kimia seeking a review of its undertaking under Division 5 of Part XVB of the Customs Act.
9 Because of the view I take of the first of these, and because the second is contingent upon a view being taken of the first contrary to my own, I will deal separately with the two and only in any detail with the first.
The 30 July 1997 Undertaking
1. Factual Setting
10 1. In May 1993 the third respondent, Australian Paper Limited ("AP Ltd") applied to the Australian Customs Service ("the ACS") to have dumping measures put in place against exports to Australia of A4 copy paper. Later that year the ACS recommended that provisional anti-dumping measures should be imposed on A4 copy paper from (inter alia) Indonesia.
11 2. On 22 January 1994 Kimia offered an undertaking to the Minister that was accepted on 3 February 1994. Excluding formal parts, the undertaking (which was in the form of a letter to the Minister) was in the following terms:
"Subject: Undertaking for the purpose of Section 269TG of the Customs Act 1901Acknowledging that you are considering whether or not a declaration under s 269TG of the Customs Act 1901 should be made in regard to the exportation to Australia of A4 copy paper from Indonesia, PT Pabrik Kertas Tjiwi Kimia, being the exporter of such goods, hereby undertakes that PT Pabrik Kertas Tjiwi Kimia will conduct its future export trade to Australia in like goods so as to avoid causing or threatening material injury to the Australia [sic] industry producing like goods.
For this purpose, future consignments of the goods as are described in the following table ("The Table") will be made at export prices which are not less than those specified in the table.
PT Pabrik Kertas Tjiwi Kimia acknowledges that such export prices may be subject to review from time to time.
PT Pabrik Kertas Tjiwi Kimia also acknowledges that this undertaking shall take effect from the date of your acceptance thereof, but will lapse should you decide not to issue a notice declaring that Section 8 of the Customs Tariff (Anti-Dumping) Act 1975 applies to like goods exported from Indonesia."
12 The annexed "Table", again excluding formal parts and items deleted (presumably for confidentiality reasons in the exhibit tendered), is as follows:
"THE TABLE
DESCRIPTION: Woodfree, uncoated white A4 cut ream copy paper, weighing from 70 to 80 grams per square metre.
EXPORT PRICE: $[space] Aus per tonne, FOB Indonesia, packed.
No adjustment is to be made to the export price for credit terms up to [space] days."
13 3. The above undertaking, not making provision for its earlier expiration, was to expire five years later on 3 February 1999 by virtue of the provisions of s 269TM(2).
14 4. In November 1996 the Minister, in accepting an ACS recommendation, replaced the price undertaking with a dumping notice. This resulted in proceedings by Kimia challenging the notice. In an apparent attempt to settle this proceeding a written offer was made to Kimia on 22 April 1997 that indicated (inter alia) that:
"the Minister would be prepared to accept an undertaking from your client on the same terms and the same conditions as the original undertaking but with a revised minimum export price equal to the revised normal value in Customs report No. 96/013, and which would operate for the remainder of the period of five years after the day on which the initial undertaking was entered into. That is, any revised undertaking would be in place for approximately 21 months, to expire on 22 January 1999." Emphasis added.
This offer, apparently, was not accepted. Nonetheless, consent orders were later made in this Court setting aside the notice.
15 5. On 1 July 1997 the ACS again recommended to the Minister that consideration of anti-dumping action against Kimia be resumed. An element in the making of that recommendation was Kimia's refusal to renew its price undertaking at a "revised level".
16 6. On 4 July 1997 Kimia proposed a "revised price undertaking". As with its 22 January 1994 undertaking, it was communicated by letter with an annexure. The letter was in terms that closely reflected its 1994 predecessor. It provided (excluding formal parts):
"Undertaking for the purposes of Section 269TG of the Customs Act 1901Acknowledging that you are considering whether or not a declaration under section 269TG of the Customs Act 1901 should be made in regard to the exportation to Australia of A4 Copy Paper from Indonesia, PT Pabrik Kertas Tjiwi Kimia, being the exporter of such goods hereby undertakes that it will conduct its future export trade to Australia so as to avoid causing or threatening material injury to the Australian industry producing like goods.
For this purpose, future consignments of the goods as described in the attached "Revised Price Undertaking", will be made at export prices which are not less than the amounts specified.
PT Pabrik Kertas Tjiwi Kimia acknowledges that such export prices may be subject to review from time to time.
PT Pabrik Kertas Tjiwi Kimia also acknowledges that this undertaking shall take effect from the date of your acceptance thereof and will expire on January 22, 1997 [sic]."
The reference to 1997 in the final sentence was a typographical error, 1999 clearly being intended. The attached "Revised Price Undertaking" (which was "page 2" of the letter) again reflected the "Table" of the 1994 communication. It provided.
"REVISED PRICE UNDERTAKING
Goods: Woodfree, uncoated white A4 cut ream copy paper, 75 to 80 gsm per square metre [sic].
Export price:
Sinar Dunia A4 copy paper A$1126/tonne, packed, FOB, 120 days from Bill of Lading date.
Paperplus A4 copy paper A$1218/tonne, packed, FOB, 120 days
(PPS FC 80 A4) from Bill of Lading date."
17 7. The ACS responded by letter on the same day. It indicated that Kimia had misunderstood what the required prices were to be in the revised price undertaking. The letter went on:
"In addition, for the purposes of a revised undertaking it is only necessary to provide an amended version of the Table attached to the original undertaking, that is, page 2 of your letter. It should also have the signature of the company representative responsible for the undertaking (and the date of signing) as well as the name and title for that person.If the Minister accepts the revised undertaking, it would take effect from the date of his signature. For this reason, the expiry date of the revised undertaking - if no revocation occurs beforehand - would be 3 February 1999. This would be five years after the day on which the Minister accepted the undertaking (3 February 1994)."
18 8. A "Revised Price Undertaking" containing the corrected revised price was sent to the ACS on 7 July. The accompanying letter of that date stated:
"Herewith our Revised Price Undertaking, amended as advised by your letter of 4 July 1997.We acknowledge that, if accepted by the Minister, the expire [sic] date of the revised undertaking will be 3 February 1999 unless there is earlier revocation."
19 9. The Minister signed the "Revised Price Undertaking" document on 30 July 1997 and so, it would seem, accepted the undertaking offered.
2. The Australian Paper Ltd case
20 The character of the undertaking given by Kimia in 1997 was considered by the Full Court of this Court in Australian Paper Ltd v Anti-Dumping Authority (1998) 157 ALR 575. At issue was whether that undertaking was merely a variation of the 1994 undertaking that remained in force subject to the variation, or whether it was a new undertaking that superseded that of 1994.
21 Having regard to the scheme of the Customs Act the Court held that the 1997 undertaking was a fresh undertaking speaking from the date of its acceptance by the Minister. Significantly, because it was not in issue in the case, the Court did not express a view upon the totality of the terms of the 1997 undertaking. It merely noted the 4 July 1997 and 7 July correspondence to which I have referred and commented (at 580):
"On 30 July 1997, the Minister of State for Customs and Consumer Affairs signed (presumably by way of acceptance) a copy of the document headed "Revised Price Undertaking"."
It is, though, quite clear that the Court regarded the 1994 undertaking as being contained in the letter and the Table together: at 577-578.
22 In reaching its conclusion the Court commented (at 586):
"We might mention that we gain no assistance from the cases to which we were referred as to the question of termination or variation of contracts. An undertaking is not a contract in the private law sense at all. It is a mechanism, the acceptance of which is provided for by statute which is given both statutory effect and consequences. In particular, a price undertaking is just that. It is an undertaking concerned with a specified price (perhaps with indexation as a possibility). Change the price and the undertaking itself is no longer the same undertaking. What emerges in such a case is a fresh undertaking."
23 I would add to this that, while an undertaking accepted by a Minister for s 269TG(4) purposes does not create a contractual relationship between the parties to it, it nonetheless is the product of a consensual relationship to the extent that the Act posits an acceptance of the undertaking that is offered.
3. Submissions and Conclusions
24 Kimia's submissions on the 1997 undertaking are in the alternative. First, it is contended that the undertaking offered and accepted under s 269TG(4) was one that was to expire on 3 February 1999, the undertaking offered in the 4 July and 7 July 1997 letters containing provision for expiry after less than five years: see 269TM(2). It is said that it is of no significance that, contrary to the holding of the Full Court in the Australian Paper Ltd case, the parties might have acted on the assumption that they were only varying the 1994 undertaking. The variation offered and accepted was limited to the time of expiry of the earlier undertaking. Equally it is said that the 1997 undertaking does not extend beyond 3 February 1999 by virtue of the fact (if it be the fact) that the one page "Revised Price Undertaking" was put before the Minister by the ACS without its covering letter and without specific reference to the expiry date. If the Minister indicated acceptance on the basis of an understanding that the undertaking was to have effect for five years, it would follow that the Minister did not accept the undertaking that was offered. The result would be that no undertaking had been entered into in 1997 and the 1994 undertaking had continued until its scheduled expiry on 3 February 1997. In any event, the Minister in signing the "Revised Price Undertaking" must be fixed with the knowledge of his Department: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 66.
25 Secondly, in the alternative, it is submitted that the Minister and the CEO are estopped from denying that the 1997 undertaking expired on 3 February 1999. It is contended that Kimia relied upon the representations made by the ACS (the first of which was in the letter of 22 April 1997) that the revised undertaking would expire on 3 February. This estoppel, it is said, does not give rise to an impermissible fetter on a discretion intended to be exercised in the public interest: cf Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193. Rather it merely prevents the first and second respondents from denying that a past exercise of discretion has the effect they represented it would have: cf Brickworks Ltd v Council of the Shire of Warringah [1963] HCA 18; (1963) 108 CLR 568 at 577.
26 The first and second respondents' submissions were made with some reserve given the manifest intentions of the ACS and Kimia as to the expected duration of the 1997 undertaking. They submit, though, that the statute itself compels the result for which they contend. Their submissions can be put shortly. As to Kimia's first submission, it is said that all that was being offered was a price variation to the 1994 undertaking. The document of 7 July 1997 embodying that variation was signed by the Minister. Given that that constituted a fresh undertaking it took effect according to its terms. It contained no provision as to the early expiry of the undertaking. Therefore s 269TM(2) ordained that it endure for five years. The common understanding or assumption of the ACS and Kimia as to the duration of the undertaking was of no consequence. For s 269TM(2) purposes the undertaking itself did not make provision for earlier expiration: Australian Paper Ltd, above, at 583.
27 As to Kimia's estoppel submission, the submission is that if the undertaking did not provide for its early expiration, no estoppel could make it do so. Such would offend the Kurtovic principle.
28 AP Ltd's submissions were similar in substance, albeit they were advanced with considerably more gusto than was appropriate in the circumstances for the first and second respondents. The clear emphasis of the submission is that because the parties intended to do no more than vary an existing undertaking they did not, and did not need to, make provision for its early expiration. They thought, mistakenly, they knew when it would expire. The Full Court decision exposed their mistake. But the effect of the Full Court decision was that for s 269TM(2) purposes the fresh undertaking became, as a matter of law, one of five years' duration.
29 AP Ltd's estoppel submission was similar to that of the Minister and the CEO though it accentuated the so-called representation relied upon as a mistaken common assumption as to the legal operation of a statute.
30 For my own part I agree in substance with Kimia's first submission. Kimia's 1994 undertaking, as the Full Court indicated in the Australian Paper Ltd case, was contained in the letter and Table of 22 January 1994. The letter itself did not contain any statement stipulating or limiting the intended duration of the undertaking. For that reason s 269TM(2) gave the undertaking a five year duration.
31 When the 1997 undertaking was offered its purpose was to vary the price component of the 1994 undertaking for the unexpired period of that undertaking. The letter of 4 July (as modified by that of 7 July) in providing the new undertaking departed from the format of its predecessor in a material respect. It contained an "acknowledgment" as to when "this undertaking ... will expire": emphasis added.
32 I am unprepared to regard this acknowledgment as anything other than a manifestation of the intention on Kimia's part that the undertaking given was for a definite and prescribed period. It is the case that that period was set by reference to the expiry period of the 1994 undertaking. To that extent it could well be said that, on the mistaken assumption that all the 1997 undertaking was doing was to vary the price element of that of 1994, the express reference to expiration of the 1997 undertaking was strictly unnecessary. Nonetheless by its letter Kimia clearly indicated when "this undertaking ... will expire". That indication, if accepted by the Minister, was sufficient provision to the contrary for s 269TM(2) purposes if the letter itself (as with its 1994 precursor) was properly to be treated as part of the undertaking.
33 The Customs Act does not prescribe a form for a s 269TG(4) undertaking. I need not venture here into the question whether such an undertaking could be oral in whole or in part (even if it would need later to be reduced to writing in some degree for s 269TG(6) publication purposes). The 1997 undertaking was clearly in writing. The sole question - not addressed in the Australian Paper Ltd case - is as to what document or documents constituted the undertaking. Kimia submits that it was the composite of the letters (4 and 7 July) and the Revised Price Undertaking; the respondents, that it was the latter document for present purposes.
34 I agree with Kimia's submission. I see no reason to treat the 1997 undertaking in this respect as differing from the 1994 undertaking. The terminology "Revised Price Undertaking" used in the attachment to the 4 and 7 July letters is in my view purely descriptive in its significance in the same way that the term "Table" was in the attachment to the 22 January 1994 letter. That terminology did not of itself constitute the attachment the 1997 undertaking being offered. That undertaking was given expressly in the letter itself. And the letter incorporated by reference the attachment as a term of the undertaking given.
35 It is the case that in its 4 July 1997 letter the ACS indicated that all Kimia need provide for the purpose of the revised undertaking was a signed "amended version of the Table attached to the original undertaking". Kimia provided such a document with both its 4 and 7 July letters, ie the "Revised Price Undertaking" - albeit that attached to the 4 July letter was not signed. But what the ACS mistakenly thought was sufficient for the purpose did not alter or contrive the character of the undertaking actually given in Kimia's 4 and 7 July letters insofar as a limit was - and continued to be - given expressly to the duration of that undertaking.
36 It appears to be the case - though the evidence before me is deficient - that the document provided to the Minister on which to signify his acceptance was the Revised Price Undertaking only. I will not speculate as to what if any other documentation was before, or what if any advice was given to, the Minister when he signed. By signing the document I infer the Minister was accepting Kimia's undertaking according to its terms. Through the ACS officials the Minister was fixed with knowledge of those terms: Minister for Aboriginal Affairs v Peko-Wallsend Ltd, above, at 66.
37 Accordingly I conclude that the undertaking accepted by the Minister was limited to expire on 3 February 1999 and as such provided for "its earlier expiration" for s 269TM(2) purposes. This conclusion is sufficient to dispose of this application.
38 I will, however, refer briefly to Kimia's estoppel submission.
39 The case, in my view, is not one that properly could found the estoppel alleged. The essence of the submission is that, contrary to my conclusion above, the 1997 undertaking did not in fact provide for earlier termination than five years, but that because of an estoppel arising from representations made by the ACS and relied on by Kimia, the Minister and the ACS cannot deny that the undertaking expires on 3 February 1999.
40 Even assuming there were such relied upon representations (cf below), there is a fundamental objection to be taken to the submission. If the 1997 undertaking did not provide for earlier termination, then s 269TM(2) ordained that it endure for five years. If an estoppel was to have the effect of preventing the Customs Act operating according to its terms, it would in effect require it to be assumed that the Minister exercised his discretion to accept an undertaking for less than five years. It is clear from the terms and purpose of s 269TG(4) in its setting (see eg s 269TG(5), (6) and (7)), that the discretion given the Minister including as to the duration of an undertaking offered is one to be exercised in the public interest. The requirement that public notice be given of the undertaking accepted is redolent of this. The discretion is not one dealing essentially with private rights and interests; it is not one given for the benefit or protection of the party proffering the undertaking or for the benefit of the Minister or the ACS. As such it is one that falls within the principle exemplified in Kurtovic's case as the respondents have submitted. To hold the Minister to the representations made by the ACS prior to the Minister's 30 July 1997 decision would be improperly to impose a fetter on the discretion given the Minister by the Customs Act.
41 It is unnecessary in these reasons to enlarge upon the fetter principle. In this particular setting its burden is to ensure decisions are made in the public interest at the proper time for making the decision in question. The principle in its various applications is considered at length by Gummow J in Kurtovic; see also J Thomson, "Estoppel by Representation in Administrative Law" (1998) 26 Fed L Rev 83; Aronson & Dyer, Judicial Review of Administrative Action, at 162-172.
42 In concluding that the nature of the discretion in question here is not one which the Minister could permissibly be regarded as having exercised a particular way by virtue of an estoppel, I should not be taken as expressing a view on the question whether, if a different remedy was sought that did not require the making good of the representation, the estoppel doctrine could not properly be invoked. Notwithstanding uncertainties in the emerging incidents and remedial possibilities of the law (or laws) of estoppel in Australia: cf Giumelli v Giumelli (1999) 161 ALR 473; such has been the recent evolution in the law that it remains to be seen what role might now be allowed estoppel in relation to the exercise of the powers and duties of public officials and bodies once it is recognised that the remedies available for at least equitable estoppel do not necessarily or invariably require the making good of the assumption on which the party setting up the estoppel relied.
43 Kimia has sought to argue that the representation relied upon related to "a past exercise of discretion" by the Minister. This is not borne out by the facts as I have indicated. The alleged representations predated acceptance of the undertaking. If what is meant by the submission is that the discretion conferred by s 269TG(4) was one that properly could be exercised prior to formal acceptance of an undertaking (cf Thorby v Goldberg [1964] HCA 41; (1964) 112 CLR 597 at 605), there is likewise insufficient factual foundation in the material before me on which to base that submission.
44 Distinctly, and putting the Kurtovic objection to one side, I am by no means satisfied that the circumstances could properly be characterised as ones capable of attracting an estoppel based on a representation in any event. The very limited material before me is more suggestive of a state of affairs in which both the ACS and Kimia shared the common assumption (articulated by both) that an effect of the new undertaking would be that it would only last until 3 February 1999. If an estoppel could be brought to bear to prevent a departure from that assumption, it would more properly seem to be an estoppel by convention. I would again note that it is AP Ltd's submission that such a common assumption could not found an estoppel because it was as to the legal effect of a statute.
45 This is not the place to enter upon the modern limits of estoppel by convention in this country or to explore the less than muted criticism of the observation of the High Court in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd [1986] HCA 14; (1986) 160 CLR 226 at 245, that this species of estoppel applies to assumed states of fact and not to assumptions as to the legal effect of conduct: see eg Elsea Holdings Ltd v Butts (1986) 6 NSWLR 175 at 186ff; Government Employees Superannuation Board v Martin (1997) 19 WAR 224 at 242ff; Riseda Nominees Pty Ltd v St Vincent's Hospital (Melbourne) Ltd [1998] 2 VR 70 at 76ff. Estoppel by convention was not relied upon explicitly by the applicant and has not been the subject of detailed submission by any of the parties. Given the conclusion I have arrived at on Kimia's principal submission, no purpose would be served in seeking submissions on this issue.
46 For present purposes, though, I would observe that, whatever the scope to be given estoppel by convention in relation to assumptions concerning purely private rights, there remain formidable objections to setting up such an estoppel where the common assumption relates to the operation of a statute serving public purposes but is mistaken as to the legal effect of the statute: cf Keen v Holland [1984] 1 All ER 75 at 81-82; see also Considine v Citicorp Australia Ltd [1981] 1 NSWLR 657 at 661-662.
4. Conclusion
47 The undertaking offered and accepted making provision for its termination on 3 February 1999, Kimia is entitled to the declaration sought in its application. I will order accordingly.
48 This conclusion renders it strictly unnecessary for me to consider Kimia's alternative application concerning the Minister's alleged unreasonable delay in making a decision under s 269ZDB following the review of the 1997 undertaking. That application presupposes that the undertaking is still on foot. Nonetheless I consider it appropriate that I indicate, albeit in relatively short form, my views on the alternate application.
The Alleged Delay in Making a Decision
49 This claim is made under s 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and relates to the Minister's not having as yet made the decision she is obliged to make under s 269ZDB(1) of the Customs Act. Section 7(1) allows judicial review of a failure to make such a decision where "there has been unreasonable delay in making the decision".
1. The Factual Setting
50 1. The decision in the Australian Paper Ltd case being handed down on 2 October 1998, the ACS on 20 October 1998 advised Kimia that as a result of that decision the 1997 undertaking would be regarded as expiring five years from the date of its acceptance.
51 2. The following day Kimia applied under s 269ZA of the Customs Act for a review of the 1997 undertaking under Division 5 Part XVB of the Act. The ACS initiated that review on 12 November 1998. After the Minister granted an extension of time, the CEO published the statutorily required Statement of Essential Facts (see s 269ZD) on 30 March 1999. After receiving submissions thereon (inter alia) by Kimia and AP Ltd in April, the CEO reported to the Minister on 14 May 1999 pursuant to s 269ZDA of the Customs Act recommending that Kimia be released from its undertaking and that investigation of the need for a dumping duty notice covering Kimia be terminated.
52 3. In response to inquiries raised by the Minister's office, the ACS sought legal advice on aspects of its report to the Minister. Of principal concern was, seemingly, the appropriate basis to be adopted in the circumstances to determine the "normal value" of goods under s 269TAC. Kimia in its submission to the ACS in April 1999 drew attention to alleged flaws in the analysis of normal value.
53 4. On 12 and 29 July 1999 the solicitors retained by the ACS provided advices to the ACS. These were forwarded to the Minister on 20 August 1999, the ACS advising of the need "to overcome a potential risk in the determination of normal values" and making the recommendations that:
". Customs to write to interested parties inviting submissions within 28 days as to whether a low volume of domestic sales of identical goods to those exported can provide a suitable basis upon which to determine normal values; [see s 269TAC(14)]. if interested parties are of the view that such sales should not be accepted they will be asked to comment on what should be an appropriate level of profit to be added to the exporter's costs to make and sell the goods;
. following receipt of any submissions Customs to provide a further report and recommendations focusing upon the appropriate method to be applied in determining normal values;
. Customs to publish an Australian Customs Dumping Notice (ACDN) to publicise Customs recommendation that your decision on the initial report be deferred. The ACDN will give details of the manner in which further submissions may be lodged."
These recommendations were accepted by the Minister on 9 November 1999. In the interim Kimia had instituted the present proceeding on 12 October 1999 and the ACS had informed the Minister of this on 21 October 1999, observing that Kimia is "obviously critical of the delay in resolving its application". On 22 November 1999 the ACS wrote to Kimia's consultant indicating that the Minister had requested the ACS to undertake further work (the nature of which was referred to in the letter) and indicating that the parties' views were sought on a series of questions relating to the determination of normal value.
2. Submissions and Conclusions
54 The stages prescribed in s 269ZC of the Customs Act for the CEO's consideration of a request for review of anti-dumping measures prior to the CEO's report and recommendation under s 269ZDA have individually prescribed time limits. The section imposing the duty on the Minister to make a decision "after considering the report ... and any other information that the Minister considers relevant" (emphasis added) does not: see s 269ZDB(1). But having regard to the time limits set for the antecedent processes Kimia submitted, first, that the legislative intention is that the review process would be of limited duration.
55 Secondly, Kimia submitted that the scheme of Part XVB of the Customs Act has as its object the implementation of Australia's obligations under Article VI of the General Agreement on Tariffs and Trade and the Agreement on Implementation of Article VI ("the GATT Anti-Dumping Code"): ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564 at 569-570; and that Part XVB should be read in light of those instruments. Article 11.1 of the GATT Anti-Dumping Code specifies that anti-dumping measures (including undertakings) are to remain in force "only as long as and to the extent necessary to counteract dumping which is causing injury". And Art 11.4 requires reviews of such measures to be "carried out expeditiously and ... normally be concluded within 12 months of the date of initiation of the review".
56 Thirdly, it is submitted the delay that has occurred inhibits Kimia's ability to negotiate contracts for future supply.
57 Fourthly, the length of time since the Minister received the report on 14 May itself bespeaks unreasonable delay.
58 Fifthly, Kimia points to the failure to provide it with any real explanation for the delay until 22 November. It further suggests the explanation was unreasonable in that the issues raised for comment by the parties involve essentially issues of law.
59 The above five factors are relied upon to make out the alleged unreasonableness in the circumstances: on the use of such factors see Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455; Kimia relying upon the observations of Fisher J in Thornton v Repatriation Commission (1981) 52 FLR 285 at 290 for judicial exegesis of the meaning of unreasonable delay for the purposes of s 7(1) of the ADJR Act. There his Honour observed (at 290) that "a delay is unreasonable if it can be said that no reasonable man acting in good faith would in the circumstances have approved the delay"; and that (at 291):
"the reasonableness of the delay ... is a matter for objective determination, the question being whether a reasonable man acting in good faith could consider the decision to delay ... as appropriate or justified in the circumstances, or whether it was capricious and irrational."
See also Re O'Reilly; Ex parte Australena Investments Pty Ltd (1983) 58 ALJR 36 at 36.
60 Apart from some disagreement in emphasis as to the level of tolerable delay signified by what I will call the Thornton test, the respondents' submissions invite me to accept that the course taken by the Minister subsequent to her receiving the report in light of the concerns she registered about it, provides such explanation of what has transpired and why, as would immunise the delay from the taint of unreasonableness. They point moreover to the fact that in making a decision the Minister is entitled, apart from the report, to consider "any other information that the Minister considers relevant": s 269ZDB(1).
61 Given the misconceptions and falsified expectations that surrounded Kimia's 1997 undertaking (on the assumption I am now making of the duration of that undertaking) and the ACS's implication therein, there is every reason to have expected that, consistent with a proper consideration and examination of the matter, the Minister would as a matter of good administration have been advised to be attentive to Kimia's review request. In the event, Kimia could properly entertain the perception that the Minister had hastened slowly.
62 The present question though is not one of administrative nicety. It is whether the delay that has occurred since 14 May is unreasonable in the circumstances.
63 I accept that the scheme of the legislation and its provenance in international arrangements both suggest that the review process including the Minister's decision will, to the extent consistent with a proper and appropriate consideration of the particular matter in question, be conducted with reasonable expedition. While there has been delay in this matter which unexplained would suggest a lack of such expedition, I am not prepared to conclude on the material before me that that delay was unreasonable.
64 Shortly after receiving the report the Minister raised concerns about it that led to the obtaining of legal advice and to the ACS making recommendations to the Minister on 20 August for further action. It is regrettable that Kimia was not kept more fully abreast of what was occurring though its consultant was advised in late May that the ACS was seeking legal advice on a matter arising from its report. The Minister's taking the course she did was mandated by the provisions of s 269ZDB itself. The Minister was entitled to consider other information she considered relevant.
65 What transpired subsequent to the ministerial request - the advice, the ACS recommendation, the Minister's acceptance thereof - was referable to the course she had set in train. The delay of over two months from 20 August when the recommendation was sent to the Minister until 9 November when it was accepted was unfortunate. One can only speculate on the extent to which it was compounded by Kimia's institution of proceedings in this Court or was affected by competing demands on the Minister's attentions. I express no view on these matters.
66 I am, though, satisfied that a reasonable person could still characterise the continuing delay in this matter as nonetheless reasonable for the Minister in the circumstances. That the processes of administration could have worked more sensitively and with more attention to the matter may be accepted. But, notwithstanding the continuing impact of the lack of a decision on Kimia's own planning processes, I do not consider that the delay was or is unreasonable given that the Minister considered it proper and appropriate to set in train a process that in the event could lead to the acquisition of additional information and which could be considered to warrant a further consultative process such as is now envisaged.
67 I would reject the allegation of unreasonable delay.
Conclusion
68 Given my earlier findings I will declare that the revised price undertaking given by the applicant on 7 July 1997 and accepted by the then Minister of State for Customs and Consumer Affairs on 30 July 1997 expired on 3 February 1999.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. |
Associate:
Dated: 17 January 2000
Counsel for the Applicant: |
Mr S Gageler with Mr G Kennett |
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Solicitor for the Applicant: |
Baker & McKenzie |
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Counsel for the First and Second Respondents: |
Mr C P Comans with Mr B Zipser |
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Solicitor for the First and Second Respondents: |
Australian Government Solicitor |
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Counsel for the Third Respondent: |
Mr N Hutley SC with Mr R Hollo |
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Solicitor for the Third Respondent: |
C G Gillis & Co |
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Date of Hearing: |
10 December 1999 |
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Date of Judgment: |
18 January 2000 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2000/18.html