Hyster Australia Pty Ltd v Anti-Dumping Authority (No 2)

[1993] FCA 317

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JUDGMENT No. ...?. U. ..J *,I,.%% ;

IN THE FEDERAL COURT OF AUSTRALIA )

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! NEW SOUTH WALES DISTRICT REGISTRY ) NO G 476 of 1992

GENERAL DIVISION )

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BETWEEN:  HYSTER AUSTRALIA PTY LIMITED
First Applicant
HYSTER EUROPE LIMITED
Second Applicant

m: 

THE ANTI-DUMPING AUTHORITY

First Respondent

THE MINISTER OF STATE FOR SMALL

BUSINESS CONSTRUCTION AND	l
CUSTOMS	. X

I

Second Respondent 1-

CLARK EOUIPMENT AUSTRALIA PTY

LIMITED

Third Respondent

m

CORAM	:	HILL J
CVllNRV I , RECEIVED
L .	.., *-L.- a

: 19 MARCH 1993

EX TEMPORE REASONS FOR JUDGMENT

I

On 17 February 1993, I gave judgment in this matter in which the applicant had sought judicial review under the	! .
provisions of the Administrative Decisions (Judicial Review)
i i,

statement of reasons was given on 17 June

&& 1977 (Cth) ("the ADJR Act").	The decisions the subject of	t
t-
t ,.

that review, as set out in the applicants' amended F

I	application, were described as follows:	1
i	t I .: .,
I	I

"A... the Respondent's decision pursuant

to Section 7 of the Anti-Dum~ing Authority

Act 1988 set forth in its Report No. 71 dated May 1992 (in respect of which a

1992) tha t the imposition o f dumping

dut ies on certain f o r k l i f t t rucks exported t o Australia from the United Kingdom under

Sectlons 269TG	( 1 ) and	2 6 9 T G ( 2 )	o f the
Customs Act	1901 was j u s t i f i e d	and	the

Respondent's decision t o recommend t o the

Minister o f S ta te for S m a l l Business,

Construction and Customs ( the "Minis ter") tha t the following instruments be executed and, i n the case o f instruments under

Sections 269TG(1) and 2 6 9 T G ( 2 ) o f t he

Customs Act, ( " t h e Recommendation) :

an instrument under subsection

269TAC(8) o f the Customs Act	t o make
allowances t o normal values;
an instrument under subsection
269TAB(l)(c) o f the Customs Act	t o
determine export prices;

instruments under	section	2 6 9 T G ( 1 )
and	( 2 ) o f t he Customs Act	declaring
tha t section	8	o f t he Customs T a r i f f

J A n t i - D ~ m ~ i n a ) Act 1975 applies t o

exports o f f o r k l i f t	trucks from	the
UK; and

an instrument under subsection 8 ( 5 ) duty be ascertained by reference t o the lower o f the f u l l dumping duty or the amount necessary t o increase the export price t o the non-injurious

o f the Customs T a r i f f (Anti-Dumpina)

free-on-board price ('NIFOB' ) .

B... the decision o f t he Second Respondent

t o accept the Recommendation."

The hearlng o f t he case involved one day o f court

t ime. The evidence adduced was largely documentary and there

was no cross-examination. A f t e r delivering a reserved

judgment	I directed t h a t t he applicants bring i n short minutes
o f order t o give e f f e c t t o what I had said.	This has not yet
happened.	The applicants were ul t imately successful on one

matter argued be fore me, they were unsuccessful i n a number o f

other submissions that were made. According to the

submissions of the respondents made in the course of the

hearing, the matter upon which the applicants were successful was a matter which was not pleaded. However, the respondents took no point at the hearing about this.

The submission which ultimately found favour was

that the report made by the Anti-Dumping Authority ("the first
respondent") to the Minister of State for Small Business,

Construction and Customs ("the second respondent") under

s.7(l)(d) of the Anti-Dum~ina Authoritv Act 1988 (Cth), was

not in accordance with that section for it failed to contain a
recommendation as to the matters upon which the Minister was
required to be satisfied before giving a notice under
s.269TG(2) of the Customs Act 1901 (Cth). I held that there
had been a failure to comply with s.7(l)(d) and that that
failure had the consequence that the Minister's action, in

giving the notice under s.269TG(2) of the Customs Act, was

void.

By a motion now brought before the Court, the

applicants seek leave to argue that a notice given by the
second respondent under s.269TG(l) was likewise invalid,
because the recommendation made by the first respondent to the
second respondent likewise failed to deal with the matters in

respect of which the Minister ought to be satisfied before

giving the notice under s.269TG(l).	This motion was opposed
by the respondents.

For the applicants it was submitted first that the

Court had power to permit the applicants to argue a new matter in an appropriate case, notwithstanding that judgment in the matter had been given. The existence of such a power, which arises under 0.35, rr.1 or 7, was conceded. The parties were in agreement that the question now at issue was whether, in the circumstances of the present case, it was appropriate to exercise that power.

The applicants secondly submitted that the matter in most that may be said of the application is that the argument is clearly not inconsistent with the terms of the application. The statement of claim also clearly does not make the matter explicit. Reference was made to paras.16, 24, 27 and 29. Paragraph 16 clearly does not deal with the matter, for it respect of which argument was now sought to be addressed had	been dealt with in the application and statement of claim.
refers, in its terms, to decisions in paras.14 and 15 which
are not relevantly applicable. Paragraphs 24 and 27 make
statements of fact and are not such as to directly raise the argument. If the matter be dealt with in the statement of claim it is in consequence of para.29 which provides:

"In making the decision referred to in

paragraph 2 7 above, the Second Respondent :

(a) committed the errors of law set out

in paragraphs 16, 18, 20, 22, 25 and 26 and 25 [sic] above by deciding to adopt the ADA Report, including its

errors of law; " .

Of the errors of law referred to only para.16 might

reference to paras.14 and 15 which appear at the beginning of
the paragraph. It must be said that it would be only on a
very charitable interpretation that the matter in question
could be said to be dealt with by the statement of claim.

have relevance and that only if it be read without the amendment of the pleadings to permit the matter to be argued.

The third matter, and the matter which is really at

issue between the parties, is whether the present is an
appropriate case for the applicants to be allowed to add an
additional ground to their case after judgment has been given
but before orders have been made.

The applicants placed especial emphasis upon the

provisions of s.22 of the Federal Court of Australia Act 1976

which, so far as is presently relevant, requires the Court in
any matter before it to grant all remedies to which any of the
parties appear to be entitled, so that as far as possible all
matters in controversy between the parties may be completely
and finally determined, and all multiplicity of proceedings
concerning any of those matters avoided.

costs. Counsel proffered no evidence explaining why the matter had not been dealt with at the hearing. For the respondents special emphasis was placed upon what had been said by Brennan J in Autodesk Inc v Dyason (No 2 ) (1993) 111	were granted to his client, that leave could be on terms as to respondents to appeal in the High Court after the High Court had delivered its judgment. They submitted they had been afforded no opportunity of being heard on the questions which proved to be decisive in the determination of the appeal adverse to them in Autodesk Inc v Dyason (1992) 173 CLR 330.
The application was ultimately dismissed with costs. In his judgment, Brennan J, while accepting the Court's jurisdiction to recall a judgment which it had announced, at least prior to formal entry of it, made it clear that such jurisdiction was to be exercised "sparingly" for the reason that it was important that litigation be brought to finality. Counsel for the respondents, while not suggesting that this principle was completely determinative of the case, emphasised that in a case where no explanation in evidentiary form had been tendered, this was a principle which should be applied and should lead to the application being dismissed.
Counsel for the first and second respondents said from the bar table that the matter which the applicants now sought to argue had been dealt with in draft written
submissions which the applicants had supplied to the
of those draft submissions, a notice to produce had been served upon the applicants to produce copies of invoices, bills of lading etcetera, for certain forklift trucks, exported to Australia on or before 24 June 1992 but after respondents pursuant to an order so to do. Following receipt under s.42 of the Customs Act 1901. The applicants responded to that request by saying there were no such documents. Apparently a question arose as to whether Mr G. Tribe, Managing Director of the first applicant who had sworn an affidavit of a largely formal nature, would be required for cross-examination.

Section 22 is a mandatory direction by the

legislature to the Court and enshrines within it the most
desirable public policy of avoiding a multiplicity of legal
proceedings being entered into by a party seeking relief. It
is not, however, as counsel for the applicants conceded,
determinative of the matter in controversy between the

parties.

For the applicants it was submitted that the case

was one where of necessity no new evidence was relevant, all that was necessary was for the Court to read the decision of the Authority and of the Minister, and ask whether the

Authority's report contained the necessary recommendation. It was submitted that while perhaps matters of evidence could, in a particular case, go to matters of discretion, that was not

the case here since the respondents had not sought to avail
themselves of the opportunity to put on evidence or to
indicate in what way, if any, the matter would depend upon

evidence.

Counsel for the applicants conceded that if leave

This request was ultimately dealt with by the

Australian Government Solicitor on the basis that Mr Tribe would not be required to attend if an admission were made that there were no trucks exported to Australia in a relevant period, that relevant period being, in fact, 26 February 1992 to 26 June 1992.

Ultimately no admission was made by Mr Tribe, but

the issue disappeared so far as the respondents were concerned
when the final version of the written submissions of the
applicants arrived and contained no submission dealing with

invalidity of the s.269TG(l) notice by virtue of a failure by

the Authority to comply with s.7(l)(d) of the Anti-Dumpinq

Authoritv Act 1988.

As the matter was no longer to be raised, it was no longer relevant to cross-examine Mr Tribe on the matter.

If, in fact, it were the case that no fork-lift

trucks of the relevant kind had been exported to Australia and
entered for home consumption in the relevant period, then the
issue of the validity of the notice under s.269TG(l) would be

purely hypothetical, as no question of refund of duty would

arise in the event of the invalidity of the notice.

In my view there is no one test which is

determinative of the present application. The Court, in the
exercise of its judicial discretion, will take into account
the interest of the applicants in having the matter argued,
any prejudice to the respondents, the policy inherent in s.22
of the Federal Court Act and the public interest in the
finality of justice. All of these matters have relevance in
the ultimate decision as to whether the applicants should be

now permitted, at this late stage, to argue a new matter.

Some assistance may also be obtained from the

considerable body of case law on the question whether an
appellant should be permitted on appeal to argue a new point

not argued below.

Reference may be made, for example, to the well-

known decision in the High Court of Suttor v Gundowda Pty
Limited (1950) 81 CLR 418 at 438.	It is clear law that an

appellant will not be permitted to rely upon a point not raised at the trial where, had the point been taken, the outcome might have been affected by evidence being adduced

relevant to the question. The Courts have made it clear that
it would be necessary to balance, on the one hand, the
entitlement of the party to have his case determined according

to law and, on the other hand, the public and private

interests in the proper conduct of the proceedings.

Generally if the matter be a mere matter of law

(1982) 150 CLR 310. One example where the Full Court of this Court refused leave to argue a new question, both on the basis that evidence might have been relevant and also where it was clear that the decision not to argue the point was a conscious decision, was the decision in Galland v

whlch is not affected by evidence, leave will be given by the have been dealt with at the trial, and particularly if the point was one which was deliberately not raised below, the Court will take the view that the appellant should be bound by the manner in which the case was conducted below; cf O'Brien v Komesaroff

Federal Commissioner of Taxation (1984) 4 FCR 566. The High

Court, on appeal, similarly refused leave to the Commissioner to argue the application of s.260 of the Income Tax Assessment

Act 1936: Commissioner of Taxation v Galland (1986) 162 CLR

408.

Another analogy which is helpful in the present case

concerns the amendment of pleadings. Indeed it may be more
than an analogy in that the present is a case where, as a
prerequisite to permitting the applicants to argue a fresh
point, it would be necessary to amend the statement of claim.

Generally speaking, the Courts have taken the view

that it is in the interests of justice that parties be
permitted to amend their pleadings so that the real matters in
issue between them may be litigated. However, Courts are
reluctant to permit an amendment to pleadings after evidence
has closed in the interests of finality of litigation,

notwithstanding the provisions of s.22. This is not to say

that amendments will always be refused or that in any way the
refusal should be seen as punishing an applicant for not
raising the matter earlier. It would be highly unusual for a
court to permit an amendment to a statement of claim to be
made not only after evidence has concluded but also after
argument is concluded and judgment has indeed been given.

Another matter which is relevant to consider in the

present case is the effect of failure to permit the applicants
to argue the matter and, if need be, amend their statement of
claim upon the possibility that the applicants may not be able

to bring fresh proceedings. Under the provisions of the ADJR

Act, applications to review decisions to which that Act

applies are to be made wlthout undue delay: s.11.

There are various time limits for the institution of

proceedings in the Court set out in that section, dependent
upon, for example, the time when reasons are given, but
generally speaking it may be said that proceedings are to be
brought within 28 days of the relevant decision being notified
and all reasons given for it. Nevertheless the Court has

power t o allow a fur ther period within which an application

may be made: s . l l ( l ) ( c ) o f t h e ADJR Act.

As I said i n Victorian Broadcastina Network (1983)

P t v Limited v Minister fo r Transuort and Communications

(unreported, 2 October 1990) ( a t 1 7 ) :

"The policy o f s.11 i s qui te clear.

Applications t o review declslons t o which the Act applies are t o be made without undue delay. Many decisions, whlch are reviewable under the Act, and the present i s an example, are decisions essential t o the implementation o f government policy and administration. The relevant government authority must know, within a

r e l a t i v e l y short time whether that

decislon i s under at tack, and i f it i s ,

t he grounds upon which the review i s t o be

sought.	I t i s for t h i s reason that the
leg is la ture has se t a short period	i n

which a person aggrieved by a decision

must commence h i s or her proceedings i n

the court. The leg is la ture , by giving the court power t o extend the period la ld down

for the i n i t i a t i o n o f proceedings, has

recognised that there w i l l be

clrcumstances, vrhere i t may be impractical

f o r	the r e l a t i v e l y t i g h t	time	frame	t o be
observed	and	that	the i n t e r e s t s o f jus t ice

may d ic ta t e that an additional period	o f
time be allowed.	However, i n the ordinary

case, t he tlme st ipulated as the time i n which an application may be brought w i l l be mandatory. "

In Hunter Val ley Develouments P t v Limited v Cohen

( 1 9 8 4 ) 3 F C R 344 , a decision o f t c i ted i n t h i s area, Wilcox J

summarised, as a guide, t h e principles which had been adopted

i n t h e decisions t o t h a t date i n considering whether t o

exercise t h e d i scre t ion t o extend t h e time for payment. I t is

unnecessary for me to repeat what is there said. Among the
matters relevant to the exercise of discretion are the
applicants' prospects of success and prejudice to the
respondents, and perhaps, as in a case like the Victorian

Broadcastina Network case, to other persons.

Of considerable significance, however, as pointed

out by Wilcox J, is the applicants' explanation for the delay in bringing the proceedings. So as his Honour said in Hunter Valley Developments (at 348):

"It is a pre-condition to the exercise of
discretion in his favour that the
applicant for extension show an
'acceptable explanation of the delay' and

that it is 'fair and equitable in the

circumstances' to extend time. "

In the present case the applicants have made no

attempt in evidence to explain their delay at all, although of

course the present case is not an application for an extension

of time under the ADJR Act. It is hard to see that it is not

relevant to know why the matter has not been raised earlier. originally been raised in draft written submissions and then had ultimately disappeared from those submissions. In the absence of evidence the inference is clear, particularly havlng regard to the correspondence which passed between the Australian Government Solicitor and the solicitors for the applicants. The decision not to raise the validity of the notice under s.269TG(l) was deliberate.

It may be, as was suggested from the bar table, that

the omission of the matter from the submissions arose by
accident, but whatever be the case it is difficult to see any
acceptable explanation for the failure to raise the matter
before. Thus if the matter were now approached as if it were
an application to bring new proceedings under the provisions
of the ADJR Act, it is hard to see that the Court would extend
the time, having regard to the tests relevant to that matter.

Counsel for the applicants submitted that the

evidence which may be relevant in determining whether or not the question arising under s.269TG(l) was hypothetical would go not to the question as to whether an error of law had in

fact been committed, but only to the question as to whether

relief should be granted. That is of course so, although it

is hard to see what relevance that has to the present

discussion.

The fact of the matter is that had the matter been

litigated at an earller stage, the applicants would have believe by the change in the written submissions that the
sought to cross-examine Mr Tribe on the question whether in

the relevant time there had been trucks exported to Australia.

matter was no longer a live issue. In my view, in the present

circumstances, the applicants should be bound by the way in

which the trial has been conducted and it is now too late to

raise a new issue which might depend upon evidence. It is

open to the applicants to seek leave to commence new proceedings were not brought under that Act at an earlier

proceedings under the ADJR Act and in the application to the

time. I make no comment as to the possible outcome of such

proceedings.

In the circumstances, I would dismiss the motion

with costs.

Also argued before me at the same time was the

question of what order of costs should be made in respect of
the original proceedings. As I have already indicated, those
proceedings occupied approximately one day of court hearing.

A number of matters were raised by the applicants which are

summarised under the heading; "The Applicants' Submissions" in

the judgment (unreported, 17 February 1993).

Of the five matters there set out, the applicants

were successful only in one of them. It is true that if only

one matter had been argued, the case would have been
significantly shorter and it is probable that not all of the
documentary material exhibited to the affidavits read in the
proceedings would have been relevant.

While the ordinary rule is that the costs wlll follow the event, the Court has a judicial discretion to determine, having regard to all relevant circumstances and

matters, what order should be made. It is not unusual where a

number of matters are put in issue, but only one of them is
successful, for that matter to be reflected in a costs order
which in some way reduces the amount of the costs which the

successful party will be entitled to.

The present, in my view, is an appropriate case for

a reduction of costs to be made. It is difficult to apportion costs in a mathematical fashion, and to some extent an outcome expressed in terms of fractions or percentages will contain an element of arbitrariness. However, doing the best I can, it

seems to me that an appropriate order in the present case is
that the respondents pay one half of the applicants' costs and

I so order.

with the orders I have already made and bring in short minutes I direct that by next Friday the applicants comply

of order. If there is no agreement I will then hear argument.

I certify that this and the
preceding fifteen (15) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Mr Justice Hill.

ssociate:  \l.

Date  : 1 % MAY I Y Y 3

Counsel and Solicitors	Dr G A Flick instructed by
for Applicants:	Allen, Allen & Hemsley
Counsel and Solicitors	Mr A Robertson instructed by
for First and Second	the Australian Government
Respondents:	Solicitor
Counsel and Solicitors	Mr B W Walker instructed by
for Third Respondent:	C G Gillis & CO
Date of Hearing:	19 March 1993