Amcor Packaging (Australia) Pty Limited (ACN 004 275 165) trading as Amcor Food Cans Australasia v Chief Executive Officer of Customs
[2002] FCA 1346
•31 OCTOBER 2002
FEDERAL COURT OF AUSTRALIA
Amcor Packaging (Australia) Pty Limited (ACN 004 275 165) trading as Amcor Food Cans Australasia v Chief Executive Officer of Customs [2002] FCA 1346
CUSTOMS – anti-dumping - interim securities imposed – whether CEO authorised to summarily dismiss an application for duty assessment under s 269W(1) of the Customs Act 1901 (Cth) – whether valid application made under s 269W(1) of the Customs Act 1901 (Cth) – whether information supplied in the application to establish the applicant’s stated opinion of the export price and the normal value – whether facsimile application made within time when application taken to be lodged one day out of time.
WORDS & PHRASES – “made”, “lodged”
Customs Act1901 (Cth), ss 269V, 269W, 269X, 269Y(4)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth), s 39B
Customs Tariff (Anti-Dumping) Act 1975 (Cth), s 8Craig v The State of South Australia (1995) 184 CLR 163 referred to
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 referred to
NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 referred to
Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 referred toAMCOR PACKAGING (AUSTRALIA) PTY LIMITED (ACN 004 275 165) TRADING AS AMCOR FOOD CANS AUSTRALASIA v CHIEF EXECUTIVE OFFICER OF CUSTOMS
N1430 of 2001JACOBSON J
31 OCTOBER 2002
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1430 of 2001
BETWEEN:
AMCOR PACKAGING (AUSTRALIA) PTY LIMITED
(ACN 004 275 165) TRADING AS AMCOR FOOD CANS AUSTRALASIA
APPLICANTAND:
CHIEF EXECUTIVE OFFICER OF CUSTOMS
RESPONDENTJUDGE:
JACOBSON J
DATE OF ORDER:
31 OCTOBER 2002
WHERE MADE:
SYDNEY
MINUTES OF ORDER
THE COURT ORDERS THAT:
- A writ of mandamus be issued to the respondent compelling the respondent to examine the application for assessment of dumping duty made in the application dated 9 July 2001 in accordance with s 269X of the Act.
- Pursuant to par 1, the respondent decide what recommendation to make to the Minister and to take all other steps as may be required by the provisions of s 269X of the Act.
3. The respondent pay the costs of these proceedings.
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
N 1430 of 2001
BETWEEN:
AMCOR PACKAGING (AUSTRALIA) PTY LIMITED
(ACN 004 275 165) TRADING AS AMCOR FOOD CANS AUSTRALASIA
APPLICANTAND:
CHIEF EXECUTIVE OFFICER OF CUSTOMS
RESPONDENT
JUDGE:
JACOBSON J
DATE:
31 OCTOBER 2002
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision made on 6 August 2001 by a delegate of the respondent (“the CEO”) to reject an application made by the applicant (“Amcor”) on 9 July 2001 for assessment of dumping duty on tinplate imported by Amcor from Taiwan. The tinplate was manufactured and exported by Ton Yi Industrial Corporation (“Ton Yi”).
Amcor’s application for assessment was made under the provisions of the Customs Act 1901 (Cth) (“the Act”). Part XVB of the Act establishes a regime for the taking of anti-dumping measures in respect of goods, which have been dumped into Australia at anti-competitive prices. Part XVB was enacted in order to implement Australia’s obligations under various international agreements. Part XVB provides for the Minister to declare that dumping duties are payable. Dumping duties are imposed under s 8 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) (“the Dumping Duty Act”).
Amcor seeks judicial review of the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and s 39B of the Judiciary Act 1903 (Cth). The principal questions which arise are whether the delegate had the power to dismiss the application summarily, whether the application was valid and whether it was made within the time limitation set by the Act. The answers to those questions turn upon the construction of ss 269V and 269W of the Act in the context of the statutory scheme established by Part XVB.
The application was made in a letter of 9 July 2001 written by Mr Graeme Day. He is the managing director of ITC (Australia) (“ITC”), a trade consultant which acted on behalf of Amcor in relation to the issue of whether the goods were dumped into Australia. Mr Day’s application was transmitted to Customs by a facsimile on 9 July 2001. The facsimile consisted of a letter and a number of attachments including a spreadsheet containing amounts, which Amcor contends to be statements of its opinion as to the “normal value” and “export price” of the tinplate.
The “normal value” and the “export price” of goods are the essential components by which the Minister is to determine whether dumping of goods has occurred. She must do so by comparing the “export price” with the “normal value”; s 269TACB(1). If the amount of the export price is less than the normal value and, because of that, material injury is caused to an Australian industry, the Minister may declare that dumping duties are payable; s 269TG.
The export price in an arms-length transaction, such as between Amcor and Ton Yi, is the free on board (“FOB”) price paid or payable; s 269TAB(1). Thus, any transport charges included in the price must be excluded.
It is sufficient to say by way of introduction that, as a general rule, the normal value is the domestic selling price of “like goods” in the country of export; s 269TAC(1). However, the process of determining the normal value is complex. There are numerous variable factors, which need to be considered because the price at which goods are sold domestically will often be calculated on a different basis from the way in which goods are priced for export purposes. Thus, adjustments will need to be made to the domestic price in order to ensure that the comparison between the normal value and the export price is determined on a proper basis. This is done by making adjustments for costs which have influenced the sale price. These costs include matters such as credit terms, packaging costs, handling costs and selling costs.
The process of determining the normal value may also be complicated by the need to ensure that the goods, which are sold domestically, are “like goods”. They need not be identical but they must closely resemble the goods under consideration; s 269T of the Act.
Provision is made in the Dumping Duty Act for the imposition of interim dumping duties. The Act enables securities to be imposed for interim duties, which may subsequently be assessed. Here, securities for $300,000 were provided by Amcor in August 2000. The securities were increased to $600,000 in October 2000 and to $1m in November 2000.
In January 2001, the Minister assessed interim duties of approximately $880,000 on the tinplate imported by Amcor during the period 23 August 2000 to 10 January 2001.
An importer upon whom interim duties have been imposed may apply for and obtain an assessment of the final amount of dumping duty payable; s 269V(1). If the final amount is less than the interim amount, the CEO is to recommend to the Minister that the excess be repaid; s 269X(6).
Section 269W of the Act provides that an application for assessment must contain a statement of the amounts which in the opinion of the applicant are the normal value and the export price of the goods in each consignment; s 269W(1)(c).
Section 269W also provides that the application must contain a statement of the amount which the applicant contends to be the amount by which the interim duty exceeds the final duty payable; s 269W(1)(e).
On 6 August 2001, Mr Larry John Roux (“Mr Roux”), as a delegate of the CEO, dismissed Amcor’s application without considering it on its merits. In his letter of that date, Mr Roux stated that the application did not provide any information to establish the claimed normal values or export prices of the goods. He stated that since the application did not comply with the provisions of s 269W(1) of the Act, it was not valid and had not been accepted for lodgement.
In a statement of reasons dated 20 September 2001 under s 13 of the ADJR Act, Mr Roux stated that the reason for his decision not to accept the application for lodgement was that it did not provide information to establish the claimed normal values or export prices as required by s 269W(1)(c) of the Act. He stated that this was a substantive omission because there was no information to support the variable factors which could be used to assist in determining the final dumping duty payable.
No point was taken by Mr Roux that Amcor’s application failed to contain a statement of the amount by which the interim duty exceeded the final duty payable in accordance with s 269W(1)(e).
Nor did Mr Roux’s letter of 6 August 2001 or the statement of reasons make any reference to the question of whether the application for assessment was out of time.
Nevertheless, in this application, the CEO relies upon a failure to comply with both ss 269W(1)(c) and 269W(1)(e). The CEO also contends that the application was made out of time.
Section 269V(2)(a) of the Act provides that an application must be “made” not more than six months after the end of the importation period referred to in that subsection. It is common ground that the last day on which the application could be made was 9 July 2001.
Mr Day’s facsimile was transmitted at 5:41 pm on 9 July 2001. However, there was no Customs officer “doing duty” at that time and the application did not come to the attention of Customs until 10 July 2001, which was the receipt date that was stamped on the document.
Section 269W(2) of the Act provides that an application is taken to have been lodged when the facsimile is “first received by an officer of Customs doing duty”. Section 269W(3) states that the day on which the application is taken to have been lodged must be recorded on the application.
Thus, the CEO contends that the effect of ss 269W(2) and (3) is that the application was lodged one day late.
If Mr Roux’s decision stands, the effect of it is that the amount of approximately $880,000 levied on Amcor by way of interim duty is deemed to be the amount of duty payable on the goods; s 269Y(4).
Issues
Mr Walker SC, who appeared with Mr Leeming and Ms Richardson, said that five issues arose for consideration. They were as follows:-
(1) Whether the application contained in the facsimile of 9 July 2001 was outside the six months time limit prescribed by s 269V(2)(a) because it was “taken to have been lodged” on 10 July 2001 by reason of the provisions of s 269W(2) and (3) of the Act (“the limitation issue”).
(2) Whether Mr Roux was authorised to reject the application summarily (“the authority issue”).
(3) Whether the application contained in Mr Day’s facsimile of 9 July 2001 constituted a valid application under s 269W(1) of the Act (“the valid application issue”).
(4) If the authority issue is decided adversely to Amcor, whether Mr Roux was required to give notice to Amcor of the course he proposed to take and an opportunity to rectify any defects in the application (“the natural justice issue”).
(5) If the limitation issue is decided adversely to Amcor, whether the CEO is estopped from relying upon the deeming provisions of s 269W(2) and (3) by reason of a conversation between Mr Day and Ms Julie Ryan of the Dumping Liaison Section of Customs on 9 July 2001 (“the estoppel issue”).
Mr Gageler SC, who appeared with Mr Kennett for the CEO, said that only two issues arose. These were the limitation issue and the valid application issue. Mr Gageler submitted that the authority issue did not arise because that question depends upon there being a valid application under s 269W(1).
Mr Gageler also submitted that the natural justice issue and the estoppel issue are inconsistent with the statutory scheme expressed in particular in ss 269V and 269W of the Act.
Statutory Scheme
Part XVB has been drafted in considerable detail. Although its purpose is to prevent anti-competitive pricing which threatens to injure Australian industry, it achieves this end by the imposition of a special duty. In common with other revenue statutes, it bears all the hallmarks of legislation which has been amended from time to time in response to judicial interpretation.
The relevant divisions of Part XVB, for the purpose of these proceedings, are Divisions 1, 2, 3 and 4.
Division 1 sets out definitions. It includes the provisions under which the export price and the normal value are to be determined; ss 269TAB and 269TAC.
The determination of each of these factors is a complex process. Each of them depends upon the assessment of a wide range of variables that affect the price.
The export price is more easily determined than the import price. In an arms-length transaction, it is the FOB price; s 269TAB(1). The starting point will therefore be the invoice. The determination of transport charges, which must be excluded from the price, should be relatively easy to ascertain.
However, the determination of the normal value is far more difficult. Although the starting point is the domestic price in the country of export (see s 269TAC(1)), there are numerous variables. This is because the Act seeks to ensure that the comparison between the normal value and the export price is carried out in a way which reflects differences between the pricing of goods for domestic and export purposes; s 269TAC(8).
The process of determining both the export price and the normal value depends upon the supply of information to Customs; s 269TAB(3) and s 269TAC(6).
In determining both the export price and the normal value, the Minister is expressly empowered to disregard information which he or she considers to be unreliable; s 269TAB(4) and s 269TAC(7).
No doubt, because of the complexity of the process of comparing the export prices with normal values, the Minister has power to carry out the exercise by comparing the weighted average of export prices over the investigation period with the weighted average of corresponding normal values over that period; s 269TACB(2).
Division 2 of Part XVB sets out the procedures to be followed, and the duties of the CEO, when an investigation into dumping is made.
The CEO’s duties are triggered by an application for the issue of a dumping notice. An application may be made by a person who has reasonable grounds for believing that goods have been exported to Australia at dumped prices; s 269TB(1).
The applicant must also believe that material injury will be caused to an Australian industry producing like goods; s 269TB(1)(c).
The application must be in writing and comply with the other requirements of form and content stated in s 269TB(4).
The CEO is bound to consider the application within 20 days after it is received; s 269TC(1). Significantly, if the application does not comply with the requirements of form and content laid down by s 269TB(4), the CEO must reject it; s 269TC(1).
If the CEO does not reject the application, he or she must issue a public notice which must, inter alia, indicate that a report will be made to the Minister within 155 days after the initiation of Customs’ investigation; s 269TC(4).
The CEO has power to make a preliminary affirmative determination; s 269TD(1). A preliminary affirmative determination has fiscal consequences because it enlivens the power of Customs to require and take securities under s 42 of the Act for interim duties that may become payable; s 269TD(4).
The scheme of Division 2 is that it is the CEO who makes the recommendation to the Minister but it is the Minister who makes the decision as to whether, and in what amount, dumping duties are to be imposed; see eg s 269TDAA. The scheme also finds expression in Divisions 3 and 4.
Division 3 of Part XVB deals with the role of the Minister. It empowers the Minister to publish dumping duty notices and to accept undertakings in lieu of notices.
Section 269TG sets out the matters upon which the Minister must be satisfied in order to exercise his or her power to impose dumping duties. The conditions are that the amount of the export price of the goods is less than the amount of the normal value and, because of that, material injury to an Australian industry producing like goods is caused or threatened. If the Minister is satisfied, he or she may issue a public notice declaring that s 8 of the Dumping Duty Act applies; s 269TG(1).
Division 4 of Part XVB permits an importer who has paid interim duty on goods to apply for an assessment of duty payable on a final basis and for a refund of any overpayment.
Sections 269V and 269W are at the heart of the present application and I will therefore set them out, almost entirely, in full as follows:- .
“S 269V(1) An importer of goods on which, under the Dumping Duty Act, an interim duty has been paid may, subject to subsection (2), by application lodged with the CEO, request that the Minister make an assessment of the liability of those goods to duty under that Act.
(2)An application for an assessment of duty under subsection (1) may only be made if:
(a)the application is made not more than 6 months after the end of the particular importation period in which the goods the subject of the application were entered for home consumption; and
(b)the importer contends that the total amount of duty payable in respect of those goods under the Dumping Duty Act is less, by a specified amount, than the total amount of interim duty that has been paid on those goods under that Act.
S 269W (1) An application for an assessment of duty on goods of a particular kind entered for home consumption during a particular importation period must be in writing and contain:
(a)a full description of the goods of that kind in each consignment imported during the particular importation period; and
(b)information concerning the amount of interim duty paid on the
goods of that kind in each such consignment; and
(c)if an interim dumping duty has been imposed - a statement of the amounts that, in the opinion of the applicant, are the normal value and the export price of goods of that kind in each such consignment and information to establish those amounts; and
…..
(e)a statement of the amount by which the applicant contends that the total interim duty paid on those goods exceeds the total duty payable under the Dumping Duty Act.
(2)An application must be lodged with the CEO:
(a)by leaving it at a place that has been allocated for lodgement of duty assessment applications at Customs House in Canberra; or
(b)by posting it by pre-paid post to a postal address notified in the Gazette; or
(c)by sending it by electronic facsimile to a facsimile number notified in the Gazette;
and the application is taken to have been lodged when the application, or a facsimile of the application, is first received by an officer of Customs doing duty in relation to final duty assessment applications.
(3)The day on which an application is taken to have been lodged must be recorded on the application.” (emphasis added)
Section 269X spells out the duties of the CEO in considering an application for assessment of duty. Section 269X(1) requires the CEO to examine the application and to decide what recommendation to make to the Minister in relation to the assessment of duty. The CEO is required to carry out the examination and make a recommendation not more than 155 days after the lodgement of the application. This is a further example of the division of functions between the CEO and the Minister.
Section 269X(2) provides that, if the CEO considers that any person, including the applicant, may be able to supply information which is relevant to his or her consideration of the application, the CEO has power to request the supply of that information in writing. Where the information is sought from a third party, the information must be supplied not more than 120 days after lodgement of the application. If the information is sought from the applicant, it must be supplied not more than 155 days after lodgement of the application.
It is evident from s 269X(2) that the CEO has power to obtain information other than that which is set forth in the application. The power to obtain information from third parties is necessary because information relevant to the determination of the export price and, in particular, the normal value may not be known by the applicant. Examples of matters relevant to the assessment of normal value, which would not be known to an applicant, include the cost of production, the costs associated with the sale, and the profit component.
It seems to me that the information which the CEO is empowered to obtain from the applicant would include information needed by the CEO to verify matters which go to the opinion of the applicant as to the normal value and the export price. There is no reason why the information which the CEO may wish to obtain from the applicant would not include supplementary information required by the CEO for the purpose of deciding what recommendation he or she is to make to the Minister as to the assessment of dumping duty.
Section 269X(3) proceeds upon the basis that the CEO may take into account information obtained from third parties pursuant to s 269X(2)(a). An applicant is entitled to procedural fairness in relation to such information.
Section 269X(5) also makes it clear that the CEO is entitled to take into account not only the information contained in the application but any other information provided to the CEO by the applicant or a third party pursuant to sub-section (2). The CEO may also take into account any other information that the CEO considers relevant. Section 269X(5) provides that, upon the basis of such information, the CEO must provisionally ascertain in relation to each consignment of goods to which the application relates, each variable factor which is relevant to the determination of dumping duty; s 269X(5)(a).
Section 269X(5)(b) provides that the CEO must provisionally calculate in respect of each such consignment the amount of dumping duty payable having regard to the variable factors provisionally ascertained in accordance with par (a).
The next step in the process of assessment of dumping duty is described in s 269X(6). It requires the CEO to decide what recommendation to make to the Minister upon the basis of the provisional calculation of duty referred to in par (5)(b). If the CEO is satisfied that the total interim duty paid exceeds the total amount of duty as finally assessed by at least the amount contended in the application, the CEO must decide to recommend to the Minister that he or she take two further steps. The first is that the Minister is to make an assessment of duty by ascertaining for each consignment of goods the variable factors provisionally ascertained by the CEO. The second step is that the CEO must recommend that the Minister order a repayment of the amount by which the interim duty has been overpaid; s 269X(6)(a).
If the CEO is satisfied that the total amount of duty payable is equal to or more than the interim duty paid, the CEO must recommend to the Minister that the Minister make an assessment of duty for each consignment by ascertaining the variable factors as provisionally ascertained. The CEO is then required to recommend to the Minister that any duty in excess of the interim duty paid on the goods is to be waived; s 269X(6)(c).
Section 269X(8) is another example of the division of functions between the CEO and the Minister. It requires the CEO to make his or her recommendation to the Minister not more than 7 days after making the decision as to the terms of the recommendation. If the CEO recommends repayment of the full amount contended by the applicant, the CEO is to recommend that the Minister give effect to that decision.
Section 269Y of the Act deals with the assessment of duty. The Minister must, having regard to the recommendation from the CEO, ascertain the variable factors relevant to the assessment of duty on each consignment and order a repayment of duty or a waiver of duty.
The Facts
Most of the factual material was contained in an affidavit sworn by Mr Day on 30 April 2001. Mr Day has been a trade consultant for more than 25 years. He has been involved in approximately 100 dumping inquiries.
Mr Day’s firm, ITC, has provided consultancy services to Amcor since 1999. ITC has, since April 2000, also provided consultancy services to Ton Yi.
On about 10 March 2000, BHP Packaging Ltd (“BHP”) lodged an application under s 269TB(1) of the Act. BHP requested that the Minister publish a dumping duty notice in respect of tinplate exported to Australia from Taiwan and the United Kindom.
On 30 March 2000, Customs initiated an investigation into the alleged dumping of tinplate exported to Australia from Taiwan and the United Kingdom. The investigation was initiated by Australian Customs Dumping Notice No 2000/17. The goods, which were under investigation, were flat rolled coil or cut sheet products of non-alloy steel of a thickness of less than 0.5 mm and a width of more than 600 mm. The notice specified that the investigation period was 1 January 1999 to 31 March 2000.
Tinplate is predominantly used in the production of metal products such as aerosols and food and beverage cans. Amcor is the largest manufacturer of metal packaging in Australia.
On about 9 May 2000, Amcor provided Customs with “importer spreadsheets”. These spreadsheets contained information relevant to the determination of the export price.
On or about 15 May 2000, Amcor lodged confidential and non-confidential submissions with Customs. The non-confidential submissions stated that Amcor preferred to purchase tinplate made locally but that BHP was unable to supply a sufficient amount to the marketplace.
On 15 and 16 May 2000, Mr Roux and another Customs’ officer visited Amcor’s head office in Victoria. Mr Day was present during the visit. Amcor provided Customs with all information and access to all commercial records which were requested. Customs prepared a number of drafts of a report dealing with the visit. Amcor assisted Customs in the compilation of the report and provided it with additional material.
On 19 and 20 June 2000, two Customs officers visited the head office of Ton Yi in Taiwan. Mr Day was present during the visit and assisted Ton Yi’s staff in meeting requests for information from Customs. Ton Yi provided Customs with information and access to all commercial records sought by Customs.
In June 2000 Customs prepared a report entitled “Normal Value Report, Ton Yi Industrial Corporation, Taiwan, Tinplate”. This report stated that the purpose of the visit to Taiwan was to obtain information to establish the export prices and the normal values.
It is evident from the report that the Customs officers examined in considerable detail a large body of information including factors such as costs of manufacture and sale as well as Ton Yi’s profit. Various adjustments in relation to Ton Yi’s costs were also considered. These included credit items, freight costs and commissions. The report concluded that upon a comparison of normal values and export prices no dumping occurred during the investigation period except for the first quarter of 1999.
On 20 July 2000 Mr Roux, as a delegate of the CEO, prepared a minute paper entitled “Decisions on Normal Value Report”. The paper stated that Customs agreed with some of the adjustments to normal value recommended in the Normal Value Report but that it disagreed with others. The conclusion reached in Mr Roux’s minute paper was that all exports of tinplate sheets were exported at dumped prices with margins ranging from 4% to 12%.
On 4 August 2000 Mr Day responded to the Decision paper prepared by Mr Roux. Mr Day took issue with the conclusion reached in Mr Roux’s minute paper.
Mr Day’s letter offered an undertaking from Ton Yi in the event that dumping margins caused material injury to Australian manufacturers. The letter stated that export prices from Taiwan to Australia were increased by 3% from the third quarter of 2000. Thus, it was said that this would reduce the weighted average dumping margin.
On 18 August 2000 Customs published a “Statement of Essential Facts”. In this document Customs stated that a number of adjustments to Ton Yi’s domestic prices were required to ensure comparability with export prices to Australia. The Statement contained a conclusion by Customs that dumped exports of tinplate from Taiwan had caused material injury to the Australian industry in the first half of 2000.
On 23 August 2000 Customs published a “Preliminary Affirmative Determination: Dumping Investigation into Exports of Tinplate from Taiwan”. It imposed securities under s 42 of the Act for interim dumping duty on tinplate imported on or after 23 August 2000.
On or about 23 August 2000 Amcor established a facility at Westpac Banking Corporation for the provision of securities for interim duty.
On 1 September 2000 Amcor wrote to Mr Roux. One of the points made in the letter was that Customs’ decision did not have regard to the increase in the export price after the initiation of Customs’ inquiry.
On 7 September 2000 Mr Day wrote to Customs. He too made the point that the dumping margin continued to decline due to increases in the export price.
On 22 September 2000 Ton Yi gave an undertaking to the Minister to conduct future exports to Australia at an export price not less than prices set forth in a schedule.
On 3 October 2000 Customs published a “Trade Measures Branch Report No 26”. This report reiterated Customs’ earlier conclusion that dumped exports of tinplate from Taiwan caused material injury to the Australian industry in the first half of 2000.
On 14 December 2000 Amcor and BHP entered into a 3 year supply agreement which provided for Amcor to purchase all tinplate which BHP was able to supply.
During the period from 23 August 2000 to 10 January 2001 Amcor purchased 6,385.5 tonnes of tinplate from Ton Yi. Customs entry forms were completed for each shipment and $880,579.86 of securities were imposed by Customs.
The Customs entry forms contained a convenient summary of each shipment. They contained details including Ton Yi’s invoice Number, the export price, freight and other details identifying the tinplate.
On 10 January 2001 the Minister accepted Ton Yi’s price undertaking given in its letter of 22 September 2001 in relation to future shipments but she did not accept the undertaking in respect of consignments made prior to 10 January 2001.
On or about 10 January 2001 the Minister accepted Customs’ recommendation to convert the cash securities provided by Amcor to interim dumping duty. The required notice under s 269TG(1) of the Act was published and accordingly the securities for $880,579.86 were converted to interim dumping duties under s 8 of the Dumping Duty Act.
On 10 January 2001 Amcor wrote to the Minister. The letter stated that Amcor and BHP had agreed that the imposition of interim dumping duties was unnecessary. Amcor requested cancellation of the s 269TG(1) notice.
On 24 January 2001 the Principal Adviser of the Minister wrote to Amcor stating that the interim duties were lawfully imposed. However, the Minister suggested that Amcor apply for a final dumping duty assessment.
On 25 January 2001 Customs made demand on the Westpac facility and accordingly received payment of the sum of $880,579.86.
On 9 July 2001 Mr Day had a conversation with Ms Julie Ryan. The conversation was set out in par 106 of Mr Day’s affidavit. He was not challenged as to the terms of the conversation. The effect of it was that Ms Ryan said the deadline for lodging an application for assessment of duty was imminent; that the application should follow the form of s 269W of the Act and that there should be some evidence of a change in one or more of the variable factors taken into account in calculating the normal value.
In fact, the last day for lodgement of the application was 9 July 2001. Mr Day sent the application for assessment of duty to Customs by facsimile on that day. He sent it after his conversation with Ms Ryan. As mentioned in the introduction, Mr Day’s letter bears a facsimile imprint which indicates that it was transmitted to Customs at 5:41 pm on 9 July 2001. However, the facsimile was stamped by Customs with the date 10 July 2001. As stated in the Introduction, the Minister relies on this stamp as the date on which the application is taken to have been lodged.
The spreadsheet attached to the letter claimed two amounts by way of refund. The first amount was $291,288.00. The second was $880,576. It was not clear on the face of the document that these two figures were alternative claims. However, a close examination of the document would indicate that this was so.
The first claim was calculated upon the basis that the export price determined by Customs had increased during the investigation period. Customs had apparently assessed Amcor upon the basis that it purchased tinplate at a price which was 19% less than the normal value. The normal value shown in the spreadsheet for the first claim was the normal value calculated by Customs in respect of goods exported during the investigation period. The claim proceeded on the basis that the export price had changed but the normal value had not.
It was contended by Amcor that it was entitled to a refund of an amount of $291,288 to reflect the total amount by which Ton Yi had increased its export prices. That is to say, according to Amcor, the dumping margin had been overstated by that amount.
The alternative claim for $880,576 was based upon an assertion that domestic prices had “declined by more than 10% - 15%” during the second half of 2000. This assertion was made in an unsigned letter dated 9 July 2001 from Ton Yi, which was attached to Mr Day’s faxed application of the same date.
Mr Roux’s Evidence
Mr Roux has been employed by Customs for nearly 20 years. He has a wealth of experience in the investigation of dumping cases. He has been the director of the Dumping Liaison Unit in the Trade Measures Branch of Customs since 1997. His delegation from the CEO includes the functions set out in s 269X of the Act.
In his affidavit, Mr Roux set out in some detail the reasons why he declined to accept the application for lodgement. The effect of his evidence was that the application was defective because it did not contain “supporting information” to establish the claimed export prices and normal values.
Mr Roux did not consider that the unsigned letter from Ton Yi amounted to information to establish the revised normal values appearing in the application. He said that the calculation of the normal value was a complex issue, in particular, because of the variables in the tinplate under examination. These were thickness, sheet width, depth of coating and temper.
He pointed out that Mr Day had received a copy of Customs’ normal value calculations which revealed the methodology used in making the calculations. Thus, he said that Mr Day was aware of the level of detail required in the application because of his knowledge of the way in which Customs had calculated the normal value and also by reason of Mr Day’s experience in such matters.
At the start of his cross-examination, Mr Roux accepted the proposition put to him by Mr Walker that he made his decision upon the basis that the application had to be supported by documentary evidence. If not, it was not an application at all.
This was because Mr Roux distinguished between evidence and information. It was a distinction which he assumed to have been based upon the terms of the Act. Consistently with this, he said that unless the application contained primary accounting records for the amount of freight paid, it was not an application under the Act. However, as the cross-examination progressed, Mr Roux became increasingly uncomfortable with the distinction. He seemed to resile from it altogether in the following passage:-
“But you, I suggest, from the way in which you've repeated today, what you
said in the affidavit, and in your statutory reasons, took the approach that
unless there was evidence to demonstrate the truth or accuracy of
information, this was no application at all, is that right? --- No.Are you sure? --- Yes.
Now, did you require, I repeat, primary accounting documents to support
statements of information concerning the stated export price? --- I don't
know what you mean by primary accounting documents.Are you serious in that last answer? --- Yes.
Have you ever heard the expression before? --- Not in this context.” [at 75-76]
He then agreed that it was unnecessary to support the application by a bundle of invoices. Later he said that it was necessary to have two or three invoices by way of sample but he was forced to concede that this approach was not justified by the Act.
I did not find Mr Roux to be a satisfactory witness. This was because of the inconsistencies in his evidence to which I have referred. Also, he was reluctant to answer many of Mr Walker’s questions. Mr Walker put two propositions to him with which he did not agree. They were as follows:-
“And I suggest to you that what you have done by your approach is simply to reject out of hand an application as not being an application at all because of non verification and doubts about reliability, both of which would ordinarily be achieved after the application is accepted? --- I don’t agree with that statement. [at 79]
…
Just answer the question please. Don’t you agree that in light of those last answers you’ve given that you have taken an approach which whether it be in accordance with other people’s practice or not is a requirement imposed by you in order to treat an application as a valid application? --- No.
Let me finish. That it contains evidence distinct from information which would demonstrate to your satisfaction using sampling procedures or otherwise the accuracy or truth of the information. Is that right? --- No.”[at 83]
I do not accept Mr Roux’s answers to these questions. I find that his approach was accurately stated in the propositions put to him by Mr Walker.
The limitation issue
The application must be made not more than six months after the importation period; s 269V(2)(a). The goods which were the subject of the notice under s 269TG(1) were the goods which were imported during the period from 23 August 2000 to 10 January 2001. Thus, the notice, which was published on 10 January 2001, was a retrospective notice.
Section 269T defines the importation period in relation to goods that have been the subject of a retrospective notice as the period ending immediately before the day of publication of the notice.
In order to comply with s 269V(2)(a), the application was required to be “made” not more than six months after 9 January 2002. This time limit expired at midnight on 9 July 2002. So much was common ground.
However, Mr Gageler submitted that under s 269V(2)(a), an application cannot be said to be made until it is lodged. He relied upon the fact that s 269V(1) states that an importer may request an assessment of final duty by an application “lodged” with the CEO.
Mr Gageler also relied upon s 269W(2). This subsection specifies the means by which an application must be made and states, expressly, that the application must be “lodged” with the CEO.
It follows on this approach that an application cannot be said to have been made within the time limited by s 269V(2)(a) until it has been lodged by one of the methods stipulated in s 269W(2).
Thus, in Mr Gageler’s submission, the application must be taken to have been lodged on the date recorded by Customs on the application. Since “made” means “lodged”, this result, in Mr Gageler’s submission, follows as a matter of plain construction from the concluding words of s 269W(2) and from s 269W(3).
I do not accept Mr Gageler’s submission. It seems to me that, notwithstanding the logical force of his approach, it does not take into account the fact that the word “made” does not appear anywhere else in s 269V or s 269W. In my opinion, the legislature must have intended to use that word in a different sense from the meaning of the word “lodged” where it appears in s 269V(1) and s 269W(2) and (3).
In my opinion, the word “made” in s 269V(2)(a) has its ordinary meaning so that where an application is sent by facsimile and received on or before the due date, it has been made by the date on which the facsimile was received.
Difficult questions may arise as to when an application posted by prepaid post can be said to have been made for the purposes of s 269V(2)(a). However, each case will turn upon its own facts and no such issue arises in the present case.
I accept Mr Walker’s submission that the legislative purpose which underlies the use of the word “made” in s 269V(2)(a) and the use of the word “lodged” in s 269W(2) and s 269W(3) is to draw a distinction between the time limit which binds an applicant and the time limit which binds the CEO.
It seems to me that the intention of the use of the word “made” in s 269V(2)(a) was that an applicant was required to make his or her application within a period which he or she can calculate from matters known to the applicant. Thus, where the notice under s 269TG(1) is a retrospective notice, the applicant can determine from it the closing date by which the application must be made.
The applicant can then take steps to see that the application is received by the CEO on or before the closing date rather than by reference to a statutory fiction under which the application is not taken to have been “made” or “lodged” until Customs records it.
The time limit which binds the CEO is that he or she must examine the application and decide what recommendation to make to the Minister not more than 155 days “after lodgement” of the application; s 269X(1).
Thus, when taking the steps prescribed by s 269X(1), the CEO will know the date from which time begins to run because the application is taken to have been lodged on the date recorded on the application. Customs should not be assumed to act otherwise than bona fide in recording the date provided for in s 269W(3).
It follows that in my opinion Amcor’s application was “made” within the time limited by s 269V(2)(a) of the Act.
The authority issue
In my view, Mr Roux did not have power under s 269W(1) to summarily reject Amcor’s application. The reasons for this are twofold.
First, there is nothing in s 269W, which confers such a power in express terms upon the CEO. The provisions of s 269W stand in stark contrast to s 269TB(4) and s 269TC(1). Those sections state in unambiguous language that an application for action under the Dumping Duty Act must be in the form and content referred to in s 269TB(4). If it is not, the CEO “shall reject” it; s 269TC(1).
Second, s 269X(1) expressly obliges the CEO to examine the application and to decide, within 155 days, what recommendation to make to the Minister. The CEO is given power to obtain further information with a view to being able to provisionally ascertain each variable factor relevant to the determination of dumping duty; ss 269X(2) and (5)(a). The CEO is also required to provisionally calculate in respect of each consignment the amount of duty payable.
The CEO’s obligations to make a recommendation to the Minister as to the amount of duty payable and the amount of any refund are contained in ss 269X(6) and (8). This division of functions is a feature of Part XVB of the Act. It is a theme which underlies Divisions 2, 3 and 4 of Part XVB. It is for the CEO to recommend but it is for the Minister to decide what refund, if any, is to be made in the light of the CEO’s recommendations.
In my opinion, the division of functions between the CEO and the Minister is inconsistent with the existence of any power of the CEO to summarily dismiss an application without considering its merits. A power to recommend cannot import with it a power to dismiss summarily.
It follows that the decision of Mr Roux, as delegate of the CEO, was affected by an error of law.
However, not every error of law gives rise to jurisdictional error. It seems to me that the question which arises is whether, upon the proper construction of ss 269V, 269W and 269X, Mr Roux’s rejection of Amcor’s application is of itself jurisdictional error, regardless of the validity of the application, within the well-known principle stated by the High Court in Craig v The State of South Australia (1995) 184 CLR 163 at 179.
An alternative approach is, whether it is inconsistent with the attainment of the objective of Division 4 of Part XVB to treat the unauthorised rejection of the application as invalid regardless of whether or not Amcor had filed a valid application; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-1.
Section 269X(1) of the Act does not make the performance of the CEO’s duties dependant upon the lodgement of a “valid application”; cf the Migration Act 1958 (Cth), ss 348 and 414; see also NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [625] per von Doussa J.
Nevertheless, it seems to me that the scheme contained in Division 4 requires a valid application to enliven the duty of the CEO to examine it and decide what recommendation to make.
It follows that, in my view, the question of whether I ought to exercise my power of judicial review turns upon whether Amcor’s application of 9 July 2001 was valid.
The valid application issue
Mr Gageler conceded that the provisions of s 269W(1)(a) and (b) were complied with. Section 269W(1)(d) was not relevant. Therefore, the issue between the parties was whether pars (c) and (e) of s 269W(1) were satisfied.
Thus, the questions which arise are: first, did the application contain a statement of the amounts which in the opinion of Amcor were the normal value; second, did it contain a statement of the amounts which in Amcor’s opinion were the export price; and, third, did it contain “information” to establish those amounts; see s 269W(1)(c).
A further question arises as to whether the application contained a statement of the amount by which Amcor contended that the total interim duty paid on the goods exceeded the actual duty payable; s 269W(1)(e).
The answers to these questions turn on whether the relevant statement and the information were contained in the spreadsheet which was attached to Mr Day’s letter of 9 July 2001.
The spreadsheet is not easily understood by a person who is not well versed in the intricacies of international trade. However, both Mr Day and Mr Roux have a wealth of experience in preparing and deciphering this type of document. Moreover, it must have been apparent to Mr Roux that the spreadsheet was to be considered in light of the extensive history of the matter dating from the time of Amcor’s first communications with Customs in May 2000.
The spreadsheet contained on a line by line basis in relation to each shipment of goods, details of Ton Yi’s invoice number, details of the quantity of goods imported in each shipment including the width and gauge of the tinplate, the amount of interim duties imposed per tonne and details of the entry lodgement number under which the goods were entered into Australia by Amcor’s customs agent. This number appeared on the form lodged with Customs for each shipment and contained details of the amount of interim duties imposed.
Other relevant details on the spreadsheet were the freight paid, the FOB export price in United States dollars and also that price converted into Australian dollars and New Taiwan dollars.
A further column contained a statement of the normal value expressed in New Taiwan dollars. Mr Day said in his affidavit that this amount represented the normal value for the specification of tinplate imported in each shipment as ascertained by Customs for the investigation period which commenced on 1 January 1999 and ended on 31 March 2000. He said in cross-examination that it was the figure ascertained by Customs under s 269TAC(1) as adjusted in accordance with s 269TAC(8) even though he did not accept that this was a proper basis upon which to calculate the normal value. Since the figure was based on the investigation period, the amount which was stated to be the normal value was not ascertained by reference to the period during which the goods were imported, namely 23 August 2000 to 10 January 2001.
A further column in the spreadsheet set out the duty payable in New Taiwan dollars. It is clear enough that this figure is the difference between the export price and the normal value, which was then converted to Australian dollars. This difference would be taken by an experienced reader to be a statement of the actual amount of dumping duty which should have been payable on the shipment upon the assumption that the normal value was accurately stated in the spreadsheet.
The next column set out the amount of the refund due calculated by deducting the actual duties said to be payable from the amount of the interim duties imposed.
The total amount of the refunds claimed appears at the foot of this column. The amount, which was set out, was $291,288.00.
The last four columns of the spreadsheet commenced with details of the “normal value revised” in New Taiwan dollars. It would be plain enough to an experienced Customs officer reading these figures that the normal value stated earlier in the spreadsheet had been revised downward by 15% in light of the letter from Ton Yi dated 9 July 2001.
It is true that the letter was unsigned and that the information was not provided in clear terms. However, it should have been sufficiently plain to an experienced person reading the spreadsheet that it disclosed a 15% downward adjustment to the normal value in order to reflect what Ton Yi had stated in the letter. The words “by more than 10%.-15%”, though lacking in precision, should have made it sufficiently clear to Mr Roux that Ton Yi’s letter was furnished as information to justify this revision. Indeed, that was the way Mr Roux read the letter. However, he was of the view that it did not contain the sort of detail which was required.
The next column headed Revised Duty payable in New Taiwan dollars ought to have been taken to be a statement of the difference between the revised normal value and the export price. This figure was then converted to Australian dollars and the final column set out the revised refund due calculated by deducting the revised duty said to be payable from the interim duty. The total amount of the refund for all of the shipments was shown as $880,576.00.
In my opinion, it follows from what was recorded on the spreadsheet that the application contained a statement of Amcor’s opinion as to the amount of the normal value of the goods. The Act does not require any formality as to the way in which the opinion is expressed. It was sufficient for Amcor to set out the opinion in a document of a kind regularly submitted for consideration by Customs.
A more serious question arises as to whether there was “information to establish” the amounts which were said to be the normal values. Of course, the word “information” must take its meaning from the statutory context. However, it is useful to set out the observations of the Full Court in a different statutory context in Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [18] – [19] and [22] as follows:-
“The Macquarie Dictionary includes these definitions of the word “information”: “1. Knowledge communicated or received concerning some fact or circumstance; news. 2. Knowledge in various subjects, however acquired”. The Oxford English Dictionary (2nd ed, 1989) includes among its definitions of “information”: “3.a. Knowledge communicated concerning some particular fact, subject or event; that of which one is apprised or told”. (emphasis added). As these definitions show, “information” is capable of different shades of meaning, depending on the context.
The appellant’s contention, as we understand it, is that “information” in s 424(1) is confined to material that is reliable or has a sound factual basis. The only qualification expressed in s 424(1) as to the nature of “any information” that the RRT can get is that the RRT itself considered the information relevant. Moreover, the RRT cannot know whether material it obtains is sound until the material is assessed and findings are made. Some material will prove to be reliable in whole or in part; some will be unreliable or even fabricated.
…It is not necessary for the purposes of the present case to explore the outer limits of the word “information” as used in ss 424(1) and 424A(1). In our view, it includes assertions made by a person (whether identified or not) that particular aspects of an applicant’s account of events are untrue. It includes the assertions made in this case by the informant, each of which addressed and (as the RRT said) cast doubt on an aspect of the applicant’s account of events.”
In the present case, what was required was that there be “information to establish” the amounts rather than merely “information”. Nevertheless, the passage from the Full Court’s judgment set out above indicates that information can take a variety of forms including assertions made by third parties.
It seems to me that the statutory scheme in Division 4 of Part XVB of the Act is that the application is lodged and then submitted to detailed scrutiny by Customs in order to determine whether the applicant’s opinion as to the normal value and export prices should be accepted. This process involves an examination of the opinions and the “information to establish” those amounts.
Thus, the information which is contemplated by s 269W(2)(c) is not, in my opinion, limited to documentary evidence and may include any assertion which apparently constitutes knowledge of the basis upon which the opinions have been expressed. Whether or not that information after it has been considered, analysed and perhaps supplemented, is sufficient to give rise to an affirmative recommendation is an entirely different question.
Although the spreadsheet and Mr Day’s letter do not point with crystal clarity to the information which established the amounts of Amcor’s opinion as to the normal values, I think it is sufficiently clear from the first full paragraph on the second page of Mr Day’s letter of 9 July 2001 that the information relied upon was that which Customs had used in determining the normal value in its Trade Measures Branch Report. It was also sufficiently clear that the information relied upon to establish the revised normal value was the unsigned letter from Ton Yi. It was a matter for Mr Roux to decide what weight to give to that letter in making his recommendation to the Minister.
As to the question of whether the spreadsheet contained a statement of the amounts which, in Amcor’s opinion were the export prices of the goods, it seems to me that these figures were clearly shown in the columns which described the export prices expressed in United States dollars, Australian dollars and New Taiwan dollars. The adjustments for freight costs were also shown. The information to establish the export prices was set out in the column, which provided details of the invoice numbers and entry lodgement forms. All of this information would have been available to Customs from its own records which it could access by reference to the details of the invoice numbers and entry lodgement numbers on the spreadsheet.
In my opinion, the spreadsheets sufficiently comply with the requirement that the application contain a statement of the amount by which the applicant contended that the interim duty exceeded the duty payable; s 269W(1)(e). This amount was represented on the spreadsheet by the refund claimed. I do not think that the validity of the application is adversely affected by the fact that alternative refunds were stated.
Mr Gageler submitted that the application should be sufficient in itself to allow the CEO to process it and decide what recommendation to make to the Minister and what provisional assessment should be made. He said that this legislative intention was revealed by a consideration of s 269W(1) in light of the obligations of the CEO spelled out in s 269X.
Mr Gageler relied in particular upon s 269X(1), which requires the CEO to examine the application and decide what recommendation to make. He said that although s 269X(2) empowers the CEO to obtain further information from the applicant and other persons, such information, if obtained, is merely for the purpose of testing the accuracy of the opinions expressed by the applicant as to the normal value and export price.
Mr Gageler also relied on the wording of s 269X(6)(a) under which the CEO’s recommendation is to depend upon “the amount contended in the application”.
In my opinion, the provisions of s 269X do not reveal a clear legislative intention that all information to establish the amounts claimed must be contained in the application. Of course, the amounts, which represent the applicant’s opinion of the export price and the normal value, must appear on the face of the application. Without those amounts, there would be no starting point for the CEO to examine a document and make a recommendation.
However, it seems to me that it is sufficient for the application to contain a reference to information, which establishes the opinions without the need to set it out in full or annex voluminous primary accounting records.
There is no reason why the application cannot incorporate by reference the various items of information upon which the applicant relies in order to enable the CEO to examine the application and retrieve and consider the information to which reference has been made in the application.
It may well be that the information relied upon by an applicant to establish the normal value and export price consists of voluminous records. It seems to me to be sufficient for an applicant to identify that information in a way in which the CEO can identify it and have access to it. In my view, what was contemplated was a relatively short form of application. The Act did not contemplate the delivery by the applicant of a document the size of a telephone book. It may be asked rhetorically why else would the Act have permitted an application to be sent by way of facsimile; s 269W(2)(c).
Moreover, I accept Mr Walker’s submission that the power conferred on the CEO by s 269X(2) to obtain further information indicates a legislative intention that the CEO was not confined to the four corners of the application. It seems to me that s 269X(2) permits the CEO to obtain information for the purpose of either supplementing the application or testing the opinions contained in it. It follows in my view that an application is not invalid even if it does not specify all of the information relied upon to establish the normal value and export price.
Mr Gageler pointed to a spreadsheet which was Tab 4 in Confidential Ex LJR2. This document contained detailed workings of the way in which Customs had calculated the normal value for the purposes of Customs’ report to the Minister.
Mr Day conceded in cross-examination that he had seen the document either in the form of Tab 4 or in a similar format.
Mr Gageler submitted that the spreadsheet attached to the letter of 9 July 2001 was defective because it did not contain all the detailed steps contained in Tab 4.
However, Mr Leeming submitted that the spreadsheet attached to Mr Day’s letter merely worked from Customs’ model and set out only those variables which, in Amcor’s contention, had changed since Customs prepared its report.
It seems to me that the Mr Leeming is correct. There is nothing in Division 4 which requires the applicant to provide every step in the process of stating his, her or its opinion as to the normal value or export price. Nor is there anything which requires the applicant to document every piece of information relied upon to support the opinion. This is especially so where the information is already available to Customs from its own records.
Accordingly, in my opinion, the application was valid. It follows that Mr Roux’s rejection of the application constituted jurisdictional error, which I have power, to review by an appropriate order.
The natural justice issue and the estoppel issue
It is unnecessary for me to consider either of these issues because I have come to the view that the application was valid and that it was made within the time limited by s 269V(2)(a).
Orders
I propose to order the issue of a writ of mandamus to the respondent compelling the respondent to examine the application for assessment of dumping duty made in the application dated 9 July 2001 in accordance with s 269X of the Act. I also propose to order the respondent to decide what recommendation to make to the Minister and to take all other steps as may be required by the provisions of s 269X of the Act. I also propose to order that the respondent pay the costs of these proceedings.
I certify that the preceding one hundred and sixty-seven (167) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Date: 31 October 2002
Counsel for the Applicant:
Mr B Walker SC, Mr M Leeming & Ms K Richardson
Solicitor for the Applicant:
Speed and Stracey
Counsel for the Respondent:
Mr S Gageler SC & Mr G Kennett
Solicitor for the Respondent:
Blake Dawson Waldron
Date of Hearing:
16 - 17 September 2002
Date of Judgment:
31 October 2002
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