Du Pont (Australia) Ltd v Comptroller-General of Customs

[1993] FCA 187

Re: DU PONT (AUSTRALIA) LIMITED and E.I. DU PONT DE NEMOURS AND CO.
And: COMPTROLLER-GENERAL OF CUSTOMS; PETER KITTLER; ANTI-DUMPING AUTHORITY and
MINPROC HOLDINGS LIMITED
No. NG64 of 1993
FED No. 187
Number of pages - 9
Customs and Excise - Administrative Law
(1993) 30 ALD 829 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Heerey J(1)

CATCHWORDS

Customs and Excise - anti-dumping inquiry - preliminary finding under Customs Act 1901, s.269TD(2) - whether judicial review appropriate prior to consideration by Anti-Dumping Authority.

Administrative Law - judicial review - decision by comptroller to accept application for dumping relief - review of decision by Anti-Dumping Authority available - discretion to refuse application for review where other procedures for review - exercise of discretion by court - other factors affecting exercise of discretion - Administrative Decisions (Judicial Review) Act 1977 (Cth), s.10(2)(b)(ii).

Administrative Decisions (Judicial Review) Act 1977 (Cth) s.10(2)(b)(ii).

Judiciary Act 1903 (Cth) s.S37B

Customs Act 1901 (Cth) ss.269TAB, 269TAC, 269TB, 269TC(1)(4), 269TD(2), 269TG.

Customs Tariff (Anti-Dumping) Act 1975 (Cth) s.8

Anti-Dumping Authority Act 1988 (Cth) ss.5(a), 7, 8.

A.E. Bishop and Associates Pty Limited v Trade Practices Commission (1989) ATPR 40-985.

Swan Portland Cement Limited v Comptroller-General of Customs (1989) 25 FCR 523.

The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Limited (1949) 78 CLR 389.

HEARING

SYDNEY, 25 March 1993

#DATE 25:3:1993

Counsel for the applicants: Mr J.D. Heydon QC

Solicitors for the applicants: Blake Dawson Waldron

Counsel for the first, second,
and third respondents: Mr P. Roberts and Mr L. Katz

Solicitor for the first,
second and third respondents: Australian Government Solicitor

Counsel for the fourth respondent: Mr W.H Nicholas QC with Mr B.W Walker

Solicitor for the fourth Respondent: C.G. Gillis and Co.

ORDER

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicants pay the respondents' costs, including reserved

costs.

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

JUDGE1

HEEREY J On 12 February 1993 the applicants Du Pont (Australia) Limited and its parent E I Du Pont de Nemours and Co of the United States (hereafter collectively referred to as "Du Pont") commenced an application in this court under the Administrative Decisions (Judicial Review) Act 1977 and s.37B of the Judiciary Act 1903 challenging a decision made in the course of an anti-dumping inquiry conducted by the first respondent, the Comptroller-General of Customs. The inquiry was initiated by an Australian manufacturer of the goods in question, the fourth respondent Minproc Holdings Limited ("Minproc"). The application with which I am now concerned is an application by Minproc under s.10(2)(b)(ii) of the AD(JR) Act seeking a dismissal or stay of Du Pont's application. Insofar as Du Pont's application is made under the Judiciary Act, Minproc on similar grounds asks that this court decline to entertain it.

1. The inquiry concerns sodium cyanide, a chemical used principally in the treatment of gold ore. Du Pont manufactures this chemical at two plants in the United States, one at Memphis, Tennessee and the other at Texas City, Texas. On 2 September 1992 Minproc applied under s.269TB of the Customs Act 1901 requesting the publication of a dumping duty notice. Dumping occurs when goods are exported to Australia at an "export price", as defined in s.269TAB of the Customs Act, which is less than the "normal value", as defined in s.269TAC, in the country of origin. The difference is referred to as the "dumping margin". If "material injury" to an Australian industry producing like goods would be caused, dumping duty equal to the difference between the export price and the normal value may be imposed under s.8 of the Customs Tariff (Anti-Dumping) Act 1975.

2. On 16 December the Comptroller-General made a "preliminary finding" under s.269TD(2) to the effect that there were sufficient grounds for the publication of a dumping duty notice. There followed some correspondence between Du Pont and Customs in which it was said that there had been some error in that finding. Customs acknowledged that error and on 21 January 1993 made a fresh preliminary finding. It is this decision which is the subject of Du Pont's application to the court. Were it not for Du Pont's application the next step in the process would be for an inquiry by the third respondent, the Anti-Dumping Authority ("ADA") in accordance with s.7(1) of the Anti-Dumping Authority Act 1988: see Customs Act s.269TD(2)(b). That inquiry is already under way.

3. The ADA called for submissions by 15 March. Submissions were received from Minproc, Du Pont and eight other interested parties. The timetable to which the ADA is working will require it to make a report to the Minister by 21 May. The functions of the ADA are recommendatory only and the final decision is one for the Minister: see Anti-Dumping Authority Act s.5(a), Customs Act s.269TG.

4. There are three grounds set out in Du Pont's application. The second of these deals with the question of the date of determination of the "normal value" of the goods. I was told that as a result of a decision of another judge of this court that there is now no issue on this point. The third ground concerns the determination of the "export price" of the goods and complains of the lack of a direction by the Minister under s.269TAB(2)(c). While that is still in issue, it may be that the matter can be readily cured by an appropriate Ministerial direction, if that be necessary. It seems the substantial issue between the parties remains the first ground in Du Pont's application, namely an allegation that there was a failure to determine the cost of production of the goods which were "actually exported" to Australia. It was said that the goods came from the Texas City plant only and therefore only the cost of production of the goods at that plant was relevant and not, as the Comptroller-General apparently considered, the cost of production at both Du Pont's plants.

5. Section 10(2)(b)(ii) of the AD(JR) Act provides:
   

"10. (1) ...

(2) Notwithstanding subsection (1):

(a) ...

(b) the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:

(i) ...

(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.

1. The case of Minproc in the present application is that there is "another tribunal, authority or person" who can determine this question, that is to say the ADA. At the forefront of Minproc's argument is a comment which was made in a decision of a Full Court of this court, Swan Portland Cement Limited v Comptroller-General of Customs (1989) 25 FCR 523, a case also concerned with dumping. The judge at first instance, Burchett J, dismissed the attack on the merits but made the comment that, because the ADA would have been able to determine the matter anyway, s.10(2)(b)(ii) might make such applications inappropriate.

2. The Full Court (Morling, Pincus and O'Loughlin JJ) came to a different view from his Honour on the merits of the case but expressed agreement as to the appropriateness of the court exercising its discretion under s.10(2)(b)(ii). At p 530, after making the comment that s.10(2)(b)(ii), "appears to have been little used", their Honours said:
   

"The learned primary judge pointed out that the legislation provided 'its own method of review', referring to an applicant's right to go to the Anti-Dumping Authority referred to above. His Honour also remarked that, 'it should not be thought that it is always appropriate to bring a mater of this kind before the Court.' We agree and express the view that in many, (perhaps most) circumstances, the Court's proper response to an application of this particular sort should not be to embark upon a full hearing, but rather to exercise the discretion under s.10(2)(b)(ii) adversely to the applicant. We will not do so in this case, for two reasons.

First, the issue is one on which there is already authority, in that a view has been expressed by Neaves J which is consistent with the respondents' contention: Midland Metals Overseas Limited v Comptroller-General of Customs (1989) 85 ALR 302 at 318, 319. It seems desirable to have an authoritative decision on the point from the Full Court. Secondly, it would be an unsatisfactory course to decline as a matter of discretion to interfere with the learned primary judge's view of the substantive point, with which view we respectfully disagree. Where the court at first instance has not rejected an application in reliance on the discretion given by s.10(2)(b)(ii) and the case is purely one of statutory construction, ordinarily the Full Court can hardly be expected to refuse to decide the mater."

1. The two circumstances which the Full Court regarded as tending against what they considered should be the usual approach are not present here. It was not suggested that there was any other judicial decision on the point raised by Du Pont's application. This is not a case where a judge has already embarked on a consideration of the case.

2. I note also another authority relied on by Minproc which, while not concerned with customs litigation, did involve the exercise of the discretion under s.10(2)(b)(ii) in similar circumstances: A.E. Bishop and Associates Pty Limited v Trade Practices Commission (1989) ATPR 40-985 at 50,745 per Morling J

3. It is of course true, as counsel for Du Pont pointed out, that the view expressed by the Full Court in Swan was obiter and in any case should not be treated as binding all courts to exercise the discretion conferred by s.10(2)(b)(ii) always in the same way. Nevertheless, I think that, sitting as a single judge faced with a question arising under the same legislative scheme, obviously great weight indeed should be given to that expression of view. I might respectfully add some considerations which to my mind lead to a conclusion consistent with that comment.

4. First, it is accepted by counsel for Du Pont that if the court were to proceed with the determination of their application a decision would not necessarily be conclusive of the dumping complaint. Counsel conceded that, on the facts, the best result for Du Pont would be a finding of a slight dumping margin. This would still leave open, even if only theoretically, the possibility that the ADA or the Minister might still find there was "material injury" to an Australian industry: see Customs Act s.269TG(1)(b).

5. Secondly, the decision complained of was but one step in a complex administrative process and a decision which, in itself, is not finally determinative of the liability of Du Pont to pay anti-dumping duty. The matter has to be considered afresh by the ADA and even then the decision is finally a matter for the Minister.

6. Thirdly, the regime prescribed by Part XVB of the Customs Act, and in particular Division 2, contains legislative directions as to the times in which various steps are to be taken: see ss.269TC(1), (4) and 269TD(2)(b) and also Anti-Dumping Authority Act ss.7 and 8. Because the commercial context in which questions of alleged dumping arise may change rapidly there is an obvious need, explicitly recognised by Parliament, to have disputed issues resolved promptly.

7. Fourthly, the issues in the present case are admitted to be not pure questions of law but at best mixed questions of fact and law. To take a hypothetical example, there might be some question as to whether a particular head of costs may be applicable solely to the Texas City plant or properly attributable to both plants. I think it is better the ADA consider any question of law in the light of its findings as to the actual facts, which in all probability will be subject to more detailed examination than could reasonably be expected when the matter was considered by the Comptroller-General.

8. Finally, I do not think that Du Pont will suffer any great hardship if Minproc's present application succeeds. Du Pont in their submissions to the ADA have put substantial argument in support of the point which is at issue in their application to this court. Although the ADA is not necessarily constituted by legally qualified members, I was informed that its practice is to obtain advice from the Australian Government Solicitor on any legal issues raised. In the meantime Du Pont can export sodium cyanide to Australia, subject only to the risk that it may have to pay anti-dumping duty if a decision to that effect is finally made by the Minister. Du Pont has been required to provide security against this eventuality, which so far has been constituted by $31,043 cash and a documentary promise to pay $140,000. Some reference was made in the affidavit in support of its application to the adverse effect a continuation of this anti-dumping inquiry would have on Du Pont's corporate image which it has promoted by sponsorship of opera and ballet in Australia and other public spirited activities. I am not persuaded that the mere fact that an anti-dumping inquiry is being conducted in accordance with procedures laid down by Parliament would give rise to any obloquy or damage the reputation of Du Pont in the mind of any fair minded person.

9. Counsel for Du Pont emphasised that the substantive application was also brought under s.39B of the Judiciary Act. But in so far as relief is sought under that section, it is plain that the court also retains a discretion to grant relief considering, amongst other things, whether there is a more convenient remedy: The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Limited (1949) 78 CLR 389 at 400 and 407. I should add that in Swan the substantive application was brought under s.39B as well as under the AD(JR) Act and although in the passage which I have quoted above their Honours did not specifically refer to 39B, it is not to be assumed that they did not have that aspect in mind.

10. For these reasons I accede to the application made by Minproc. I will order that Du Pont's application be dismissed with costs, including reserved costs.