Marine Power Australia Pty Ltd v Comptroller-General of Customs

Re: MARINE POWER AUSTRALIA PTY LIMITED and MARINE POWER
INTERNATIONAL PTY LIMITED
And: THE COMPTROLLER-GENERAL OF CUSTOMS; OUTBOARD MARINE
AUSTRALIA PTY LIMITED and YAMAHA MOTOR AUSTRALIA PTY LIMITED
No. G78 of 1989
FED No. 336
Administrative Law - Customs and Excise
89 ALR 561

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Administrative Law - Administrative Decisions (Judicial Review) Act s. 5(1).

Customs and Excise - Customs Act 1901 Part XVB - Anti-dumping - whether the existence of an Australian industry producing like goods is a jurisdictional fact to the exercise of the Comptroller's powers under Part XVB - meaning of "factory overhead expenses" - whether term used in Customs Act in technical accounting sense - whether Comptroller required to have regard to accounting concepts - meaning of "like goods" - provisional nature of views of Comptroller formed at first stage of investigation - denial of natural justice - nature of information which must be released by Comptroller to enable interested parties to make submissions - requirements of confidentiality.

Administrative Decisions (Judicial Review) Act 1977

Anti-Dumping Authority Act 1988

Customs Act 1901

Customs Tariff (Anti-Dumping) Act 1975

HEARING

SYDNEY

#DATE 9:6:1989

Counsel for the Applicants: Mr. C.S.C. Sheller Q.C.

Mr. R.W. White

Solicitors for the Applicants: Mallesons Stephen Jaques

Counsel for the First Respondent: Mr. G. Downes Q.C.,

Ms. Grant, Ms. M. Beasley

Solicitors for the First Australian Government
Respondent: Solicitor

Counsel for the Second Respondent: Mr. G. Flick

Solicitors for the Second Freehill, Hollingdale &
Respondent: Page

Counsel for the Fourth Respondent: Mr. F.M. Douglas Q.C.,

Mr. P. Strasser

Solicitors for the Fourth Respondent: Coudert Brothers

ORDER

The application be dismissed.

The applicants to pay the costs of the First and Second Respondents of the proceedings, otherwise there be no order as to costs.

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

JUDGE1

Introduction

This case concerns the construction of the provisions of the Customs Act 1901 ("the Customs Act") relating to anti-dumping duties (Part XV B). Those provisions are part of a legislative scheme of the Commonwealth to be found in the Customs Act, the Customs Tariff (Anti-Dumping) Act 1975 ("the Anti-Dumping Act") and the Anti-Dumping Authority Act 1988 ("the Anti-Dumping Authority Act").

The applicants, Marine Power Australia Pty. Limited and Marine Power International Pty. Limited (to which I shall refer collectively as "Marine Power"), seek a review pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") of decisions of the delegate of the first respondent, the Comptroller-General of Customs ("the Comptroller"), made pursuant to sub-ss. 269TC(1) and (4) of the Customs Act and conduct engaged in by the delegate and the Comptroller prior to the making of a decision under s. 269TD of the Customs Act.
The primary grounds advanced by Marine Power in challenging the decisions and conduct of the Comptroller are in summary form:-
(1) that he misconstrued the relevant provisions of the Customs Act;
(2) whether he misconstrued them or not, that he adopted the wrong approach to the task which he is required to perform by sub-ss. 269TC(1) and (4) of the Customs Act; and
(3) that he denied Marine Power natural justice in not making available to it certain information claimed to be needed for the making of properly informed submissions about matters relevant to the decision which the Comptroller is required to make pursuant to s. 269TD of the Customs Act, but which he had not made when I reserved my decision on 12 May 1989.
The decisions challenged by Marine Power were made by Mr. L.J. Roux, the Director, Dumping Operations, Dumping Branch of the Australian Customs Service, as delegate of the Comptroller. The conduct which is challenged by Marine Power was that of Mr. Roux and possibly the Comptroller himself. It is common ground, however, that nothing turns on the identity of the officer or officers who made decisions or engaged in conduct relevant to this case; so, for convenience, I shall simply refer to "the Comptroller" to encompass him and his delegate or delegates.
To understand the facts and issues it is necessary to first state in summary form the relevant legislative provisions with which this case is concerned. I shall return later to a more detailed consideration of certain of those provisions.
A person may apply in writing under the Customs Act to the Comptroller requesting that action be taken under the Anti-Dumping Act. The right to apply arises where (a) a consignment of goods has been, is likely to be or may be imported into Australia; (b) there is or may be established an Australian industry producing "like goods"; and (c) the person believes that there are, or may be, reasonable grounds for the publication of a dumping duty notice in respect of the goods in the consignment (sub-s. 269TB(1)). The application is generally known as a dumping complaint.
Sub-section 269TB(3) provides for the material which must be included in the prescribed form and certain other matters relating to the form.
Sub-section 269TC(1) of the Customs Act requires the Comptroller to examine the application and reject it if he is not satisfied of three matters which are specified in paragraphs (a), (b) and (c) of that sub-section. Paragraph (b) which requires "that there is, or is likely to be established, an Australian industry in respect of like goods" (my emphasis) is critical to this case.
Sub-section 269T(4) provides that for the purposes of Part XV B of the Customs Act there should be taken to be an Australian industry in respect of goods of a particular kind if there is a person who produces "like goods" in Australia or there are two or more such persons. The expression "like goods" is defined by sub-s. 269T(1) in these terms:

"'Like goods', in relation to goods under consideration, means goods that are identical in all respects to the goods under consideration or that, although not alike in all respects to the goods under consideration, have characteristics closely resembling those of the goods under consideration."

Sub-section 269T(2) provides:

"(2) For the purposes of this Part, goods, other than unmanufactured raw products, shall not be taken to have been produced in Australia unless:

(a) the goods were wholly or partly manufactured in Australia; and

(b) not less than one quarter of the factory or works cost of the goods is represented by the sum of:

(i) the value of labour in Australia;

(ii) the value of materials in Australia; and

(iii) the factory overhead expenses incurred in Australia in respect of the goods."

Sub-section 269T(3) provides:

"(3) For the purposes of subsection (2), goods shall not be taken to have been partly manufactured in Australia unless at least one substantial process in the manufacture of the goods was carried out in Australia."

If the Comptroller rejects the application he is required to inform the applicant by notice in writing accordingly (sub-s. 269TC(1)).
If the Comptroller does not reject the application he is required by sub-s. 269TC(4) to publish a notice in the Gazette and certain newspapers stating, amongst other things, that within 120 days after publication of the notice he will make a preliminary finding as to whether there are sufficient grounds for the publication of a dumping duty notice, and, that if there is such a finding, provisional measures may be imposed including the taking of securities under s. 42 of the Customs Act. Interested parties (a defined expression) must be invited to lodge submissions with the Comptroller within 40 days.
After the end of the 40 day period for the lodging of submissions the Comptroller is required to make a preliminary finding for or against the application within that period of 120 days (sub-s. 269TD(1)). If the Comptroller finds that there are sufficient grounds for the publication of a dumping duty notice he is required under sub-s. 269TD(2) to issue a further notice to the applicant and to publish it in the Gazette and newspapers. Within seven days of the publication of the notice, the Comptroller must refer to the Anti-Dumping Authority, the question whether the publication of the notice is justified. Securities may then be taken under s. 42 on the importation of the subject goods. If the preliminary finding is negative the Comptroller is required by sub-s. 269TD(3) to publish a notice to that effect in the Gazette and newspapers. By sub-s. 269TD(4) the Comptroller must inform the applicant of the reasons for the preliminary finding and of the applicant's right of review by the Anti-Dumping Authority.
The Anti-Dumping Authority ("the Authority") is established by s.4 of the Anti-Dumping Authority Act. Where the Comptroller has referred to the Authority under sub-s. 269TD(2) of the Customs Act the question whether the publication of a dumping duty notice is justified, the Authority is obliged to hold an inquiry into the matter, and, before the expiration of 120 days after the reference to it from the Comptroller, the Authority is required to give the Minister a report recommending whether any such notice should be published and the extent of any duties that are or should be payable under the Anti-Dumping Act in consequence of the notice: sub-s. 7(1) of the Anti-Dumping Authority Act.
The power to issue an anti-dumping notice is vested in the Minister under the Anti-Dumping Act: s. 8. The consequence of the publication of such a notice is that dumping duty is then chargeable on the relevant goods: sub-ss. 8(3) and (4) of the Anti-Dumping Act.
The expression "dumping duty" is defined by sub-s. 269T(1) of the Customs Act as meaning a duty payable on goods under s. 8 or 9 of the Anti-Dumping Act; and the expression "dumping duty notice" is defined by the same sub-section as meaning a notice published by the Minister under sub-s. 8(1) or (2) of the Anti-Dumping Act.
Facts
Marine Power imports outboard motors under the brand names "Mercury" and "Mariner". There are 52 kinds of outboard motors imported under the "Mercury" brand name and 49 kinds imported under the "Mariner" brand name. Outboard Marine Australia Pty. Ltd. ("Outboard Marine"), the second respondent, is also an importer of outboard motors under the brand names "Johnson" and "Evinrude" and they are of the same general nature as those imported by Marine Power.
Outboard Marine lodged an application under sub-s. 269TB(1) of the Customs Act for action under the Anti-Dumping Act in respect of the importation by Marine Power of outboard motors falling within tariff item 8407.21.00. A supplementary submission was lodged and the two submissions together were then treated by Mr. Roux as constituting the application of Outboard Marine for the purposes of sub-s. 269TC(1) of the Customs Act. The date of receipt of the supplementary submission was 25 November 1988.
In its application Outboard Marine provided assessments of the normal value of outboard motors applying their export price in each of the countries nominated in the application, and it calculated a dumping margin for each model of outboard motor. Outboard Marine also provided information concerning material injury including information on price suppression, loss of market share by Outboard Marine and increase in market share from other countries.
Australia is a signatory to the General Agreement on Tariffs and Trade ("GATT") and to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade ("the Anti-Dumping Code"). The Comptroller's practice with respect to the consideration of dumping complaints implements the requirements of Articles 6.3 and 6.4 of the Anti-Dumping Code. Pursuant to those requirements an applicant is required to lodge both a confidential and a non-confidential version of his application. Outboard Marine lodged both documents in this case. Both versions of the application lodged by Outboard Marine were examined by the Comptroller and considered to comply with the provisions of sub-s. 269TB(3) of the Customs Act.
Officers of the Australian Customs Services visited the offices of Outboard Marine in December 1988 and January 1989 to verify the information which it had provided and to inspect its establishment.
Customs officers also sought from Outboard Marine details of its overall manufacturing operation including its production figures, sales figures, costs and Australian content in respect of each individual model of outboard motor manufactured by it. Outboard Marine provided these figures on a confidential basis.
Officers of the Australian Customs Service who attended Outboard Marine's premises informed Mr. Roux that they had checked the figures for accuracy and that amendments had been made to Outboard Marine's calculation sheet on Australian content.
Additional information was obtained by the Australian Customs Service about the export price of the goods under reference as well as the total number of goods under reference that had been imported into Australia in 1987 and 1988;
A confidential "initiation" report was prepared by the Customs Service based on the verified information contained in Outboard Marine's application and on information otherwise obtained from Outboard Marine and other sources.
Between 4 November 1988 and 13 January 1989 Mr. Roux considered both the confidential and non-confidential documents which had been lodged by Outboard Marine, the confidential amended calculations sheet on Australian content, reports made to him by the Australian Customs Service officers conducting the investigations and the "initiation" report and its attachments. In considering the material Mr. Roux accepted that "Johnston" and "Evinrude" brand engines within the range of 2 to 225hp (horsepower) were "like goods" to those goods the subject of the application and that Outboard Marine was the only local manufacturer of those goods.
Mr Roux did not reject the application because, on the basis of the material before him, he was satisfied:-

(a) that the application complied with sub-s. 269TB(3);

(b) that there was an Australian industry in respect of "like goods"; and

(c) that the matters set out in the application and alleged to constitute reasonable grounds for the publication of a dumping duty notice would, if established, constitute reasonable grounds for the publication of such a notice, or for the publication of such a notice upon the importation into Australia of the relevant goods.

On 19 January 1989 notices were published in the Gazette and in the Australian Financial Review in conformity with sub-s. 269TC(4) of the Customs Act. A public file was created and a non-confidential version of the "initiation" report was prepared and placed on it.
On or about 19 January 1989 copies of the non-confidential version of Outboard Marine's submissions, together with a questionnaire and a letter inviting submissions, were forwarded to known interested parties including Marine Power.
On 16 February 1989 an application for an order of review was filed by Marine Power which was amended on 24 April 1989. Marine Power seeks review of the Comptroller's decisions:
1. to publish the notice of 19 January 1989 under sub-s.

269TC(4) of the Customs Act notifying a dumping investigation into spark ignition piston engine outboard motors;

to accept for investigation the complaint of Outboard

Marine referred to the notice;

to not reject the amended application lodged by Outboard

Marine under sub-s. 269TB(1) of the Customs Act;

that the Comptroller was satisfied that there was an

Australian industry in respect of "like goods" to each of the particular kind of goods the subject of Outboard Marine's application.

Review was also sought of the conduct of the Comptroller in relation to the decision to be made by him under s. 269TD of the Customs Act whereby the Comptroller is said not to have revealed to Marine Power any or sufficient details of the matters set out in Outboard Marine's application to enable Marine Power to prepare adequate submissions to the Comptroller under para. 269TC(4)(e) of the Customs Act: the complaint as to denial of natural justice.
At the commencement of the hearing certain amendments to the application and the points of claim were sought by Marine Power. I allowed the amendments so that all the issues between the parties with reference to the matters in question between them in this case could be properly and fully litigated. It was not suggested that any of the respondents would be prejudiced if the amendments were allowed.
Admissibility of Evidence
Mr. Roux gave evidence by affidavit and he was cross examined. Evidence, both by affidavit and orally, was also given by Mr. K.W. Hayward, a Chartered Accountant and member of the firm of Chartered Accountants, Messrs. Coopers and Lybrand. Mr. Hayward read Mr. Roux's affidavit, including annexures and exhibits thereto, and he performed an exercise which formed the basis of the submissions of counsel for Marine Power that the Comptroller misconstrued the relevant statutory provisions, ignored what were said to be relevant accounting principles and expressions and otherwise fell into error.
An affidavit was sworn by Mr. W.R. Finney, also a Chartered Accountant and a member of the firm of Messrs. Deloitte Haskins & Sells, Chartered Accountants. Mr. Finney performed a similar exercise to that undertaken by Mr. Hayward and reached certain corroborative conclusions. Mr. Finney's evidence covered the same ground as did Mr. Hayward's evidence and, pursuant to an arrangement between the parties, no comment was made by counsel for the fourth respondent (whose witness Mr. Finney was) on the absence of cross-examination. I should say at this point that the fourth respondent, Yamaha Motor Australia Pty. Limited ("Yamaha"), is also an importer of outboard motors of the same general nature as those imported by Marine Power. Yamaha was in the same interest as Marine Power in this case and supported Marine Power in the conduct of its case.
Objection was taken by counsel for the Comptroller and Outboard Marine to the affidavits of Mr. Hayward and Mr. Finney being read, primarily on the ground of relevance. The admissibilty of the evidence was supported by counsel for Marine Power on more than one basis, but primarly on the ground that certain of the critical expressions used in the Customs Act, especially the expression "factory overhead expenses" (sub-para. 269T(2)(b)(iii)) were said to be terms of art, in the sense that they had a well understood meaning in the accountancy profession, and that it was in this sense that they were to be understood in that sub-paragraph. Reference was made to the judgment of Sir Frederick Jordan in Ex parte MacKannes and Avery Pty. Ltd.; re Royce (1943) 43 SR (NSW) 239 at 244 and D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, 3rd ed. paras. 4.10 and 4.11. I admitted the evidence because in my view it was inappropriate to exclude it when it went to the heart of Marine Power's case and the question of admissibility was not readily capable of clear determination at that stage.
The Contentions
The submissions advanced on behalf of Marine Power were detailed and highly refined, but it is not necessary to state them other than in summary form for the purposes of dealing with the issues in the case, especially since they were embodied in the main in written submissions prepared on behalf of Marine Power which were canvassed in argument before me.

I summarise the arguments of counsel for Marine Power as follows:
. it is a precondition to the Comptroller's not rejecting the dumping complaint that he be satisfied that an Australian industry exists in respect of "like goods";
. the existence of an Australian industry is a jurisdictional fact which the Comptroller must determine. Marine Power denies the existence of that jurisdictional fact;
. there is not an Australian industry in respect of "like goods" to the goods the subject of the application. Reliance is placed upon the evidence of Mr. Hayward and in particular upon the alleged incorporation in sub-s. 269T(2) of the Customs Act of accounting concepts, in particular, the expression in para. (iii) "factory overhead expenses". The balance sheet and accounts of Outboard Marine and other documents submitted by it to the Comptroller were based upon those accounting concepts, so the Comptroller should have considered them in the same vein. The statutory accounts of Outboard Marine were prepared in accordance with Australian accounting standards. If Mr. Roux had approached his task of determining the factory overhead expenses incurred in Australia in respect of the goods for the purposes of sub-para. 269T(2)(b)(iii) by adopting the accepted accounting techniques embodied in the accounts of Outboard Marine he would have reached a different conclusion to that which he in fact reached. He erroneously took the view that the statutory test of determining factory overhead expenses was one of actual expenses rather than those determined with reference to accounting concepts. In the result the minimum one-quarter local content of factory or works costs of the goods, as represented by the sum of the value of labour in Australia, the value of materials in Australia and the factory overhead expenses incurred in Australia in respect of the goods, should not have been achieved in the case of many of the particular outboard motors with which this proceeding is concerned.
. The Comptroller erred in deciding that he was satisfied that Outboard Marine constituted an Australian industry in respect of "like goods" to the goods under reference in that:

(a) he adopted a global approach of deciding that the whole range of outboard motors from 1.2hp to 225hp manufactured by Outboard Marine were like goods to each particular kind of outboard motor imported by Marine Power; and

(b) he failed to consider, or properly to consider, in respect of each particular kind of outboard motor imported by Marine Power which of the range of outboard motors manufactured by Outboard Marine constituted like goods to that particular kind of outboard motor;

. The Comptroller failed to comply with para. 269TC(1)(c) and sub-s. 269TD(1) of the Customs Act so that any preliminary finding which he has made or may make should be set aside.

The argument of Marine Power based on an alleged denial of natural justice is as follows:-
. para. 269TC(4)(e) gives interested parties the right to make submissions concerning the publication of the dumping duty notice. The existence of an Australian industry is one such matter, so that Marine Power is entitled to make submissions with respect to it. Outboard Marine's application did not deal in any detail with the existence of an Australian industry and the non-confidential version of that document did not contain any information which would enable submissions to be properly considered and made. In short, there was no opportunity to make submissions, including submissions relating to the existence of an Australian industry, and no information available to Marine Power to enable it to do so.
. It would defeat the purpose of the inquiry of the Comptroller if the rules of natural justice were applied so as to deprive parties of materials or of the opportunity to make submissions to which they are entitled. Importers are entitled not only to make submissions but to know the dumping case alleged against them. Without knowing the material which Outboard Marine alleged was relevant in assessing whether the export price was below normal value of goods, Marine Power could not respond to the existence, extent or significance of the factors alleged to show that dumping had occurred.
Findings
The Customs Act (Part XVB), the Anti-Dumping Act and the Anti-Dumping Authority Act, together contain the relevant statutory provisions relating to dumping investigations and anti-dumping duties. I have already set out those provisions in summary form from which it becomes apparent that the first stage of a dumping investigation commences with the lodging of an application for action under the Anti-Dumping Act which is then examined by the Comptroller. If he is not satisfied as to the matters specified in paras. 269TC(1)(a), (b) and (c) he is required to reject the application. If he does not reject the application the Comptroller must publish the notice required by sub-s. 269TC(4). At the end of the period of 120 days mentioned in sub-s. 269TC(4) the Comptroller considers the application again. This is the second stage of the investigative process. If, as a result of his consideration, the Comptroller makes a preliminary finding that there are sufficient grounds for the publication of a dumping duty notice, he must refer the question whether the publication of the notice is justified to the Authority (para. 269TD(2)(b)). The third stage is then reached when the Authority holds an inquiry into the matter, and, before the expiration of 120 days after the reference from the Comptroller, it is required to report to the Minister as to the matters mentioned in sub-s. 7(1) of the Anti-Dumping Authority Act. The final stage is under the control of the Minister. When the Minister is satisified, as to any goods that have been exported to Australia, of the matters specified in sub-s. 8(1) of the Anti-Dumping Act he may by notice published in the Gazette declare that that section applies to those goods. In the result a dumping duty notice is published and dumping duty is imposed on the relevant goods (sub-s. 8(3) of the Anti-Dumping Act).
There emerges from these inter-related statutory provisions a four stage procedure commencing with the dumping complaint and ending, where necessary, with the imposition of dumping duties. The challenge in this case is to the Comptroller's decisions and conduct with reference to the first stage and to the second stage in so far as any error by the Comptroller in the first stage of the decision-making process may carry through to and vitiate the second stage of the preliminary finding.
It would be strange, indeed, if the legislature intended that the consideration by the Comptroller of the dumping complaint and his decision with respect thereto at the first stage was other than of an interim nature. An examination of the triad of legislation establishes that the Comptroller's task at this first stage is of a transitional kind requiring his decisions to be of an interim or provisional nature.
An analysis of sub-s. 269TC(1) is required. It provides:

"269TC(1) The Comptroller shall, before the expiration of a period of 55 days, or, if another period is prescribed by the regulations for the purpose, before the expiration of that other period, after lodgement of an application by a person under subsection 269TB(1) in respect of the goods the subject of the application, examine the application and, if the Comptroller is not satisfied:

(a) that the application complies with subsection 269TB(3);

(b) that there is, or is likely to be established, an Australian industry in respect of like goods; and

(c) that the matters that are set out in the application as constituting reasonable grounds for the publication of the dumping duty notice or the countervailing duty notice in respect of the goods the subject of the application would, if established, constitute reasonable grounds for the publication of such a notice, or for the publication of such a notice upon the importation into Australia of such goods; he or she shall reject the application and inform the applicant, by notice in writing, accordingly."

Section 269TC is not cast in language which requires the Comptroller to be satisfied of the matters specified in paras. (a), (b) and (c) of sub-s. 269TC(1) before publishing the requisite notices. The legislature has deliberately chosen language which requires the Comptroller, having examined the application, to reject it if he "is not satisfied" of those three matters. If he does not reject the application, he is required to publish the requisite notices by sub-s. 269TC(4). Doubtless a state of mind of non-satisfaction with respect to the three matters mentioned in paragraphs (a), (b) and (c) may, in some circumstances, carry with it in the mind of the Comptroller a positive satisfaction of the opposite; but this would not necessarily be so and it is plain that the legislature recognised this by enacting sub-s. 269TC(1) in a negative form. The four stages of the investigative process manifest a legislative intent that there is an ongoing investigative process which, particularly in its earlier stages, cannot be expected to enable or require the Comptroller to form views other than of a provisional nature: see Fletcher v Ilkenston Corporation (1931) 96 JP 7 per Scrutton L.J. at 10 and Slesser L.J. at 12.
Any views which the Comptroller may have formed at the first stage of his investigations, when considering the anti-dumping complaint, are based on the information available to him at that time and he may later change his mind in the light of further information and further consideration by him of all the material. He must not, however, reach any conclusion, albeit provisionally, in an arbitrary fashion; he must exercise his powers according to law and address himself to the question which sub-s. 269TC(1) formulates. He must not take extraneous reasons into consideration or exclude from consideration factors which should affect his determination: Avon Downs Pty. Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 per Dixon J. at 360; Tasman Timber Limited v Minister for Industry and Commerce (1983) 67 FLR 12 per Lockhart J. at 27-29; J. Wattie Canneries Ltd. v Comptroller-General of Customs (1987) 16 FCR 136 at 143-145. Any view which the Comptroller may have formed at this primary stage may, however, fluctuate later as further material is made available to him.
The legislature intended, by the use of a phrase importing a negative state of mind ("not satisfied") to require a negative act ("rejection"). It did not choose a phrase suggesting a positive state of mind ("satisfied") to require a positive act ("acceptance").
The conclusion that the nature of the decision to be made by the Comptroller under sub-s. 269TC(1) is provisional and requires only a prima facie view is supported by para. 8(1)(b) of the Anti-Dumping Act which in terms refers to a "negative prima facie decision" of the Comptroller in relation to the application made under s. 269TD of the Customs Act.
I note also that, in his Second Reading Speech to the House of Representatives, when introducing the three Bills which amended the three Acts with which this case is concerned, the responsible Minister described the task of the Comptroller at the first stage of the investigative process under s. 269TC as being

"to determine whether the facts alleged in the application constitute sufficient prima facie evidence to warrant commencement of an investigation. If a prima facie case is established, the Customs Service then has a maximum of 180 days to make a preliminary finding as to whether dumping or countervailing duties should be imposed".

I turn to the argument that the existence of an Australian industry producing "like goods" to those being or likely to be imported into Australia is a jurisdictional fact. Marine Power relies for this contention primarily upon the language of sub-s. 269TB(1) which provides as follows:

"Where:

(a) a consignment of goods:

(i) has been imported into Australia;

(ii) is likely to be imported into Australia; or

(iii) may be imported into Australia, being like goods to goods to which sub-paragraph (i) or (ii) applies;

(b) there is, or may be established, an Australian industry producing like goods; and

(c) a person believes that there are, or may be, reasonable grounds for the publicatiion of a dumping duty notice or a countervailing duty notice in respect of the goods in the consignment;

that person may, by application in writing lodged with the Comptroller, request that the Minister publish that notice in respect of the goods in the consignment."

Section 269TB must be read, as must the other sections of Part XVB, in the context of that part of the Act as a whole and in the wider context of the legislative scheme relating to anti-dumping duties. The existence of an Australian industry is not a jurisdictional fact essential to the exercise by the Comptroller of the powers conferred upon him by s. 269TC. Sub-section 269TB(1) describes the circumstances in which a person may lodge a dumping complaint with the Comptroller. When read in conjunction with sub-ss. (2) and (3) of that section, sub-s. (1) can be seen to be descriptive of the matters which must be included in the form of application constituting the dumping complaint; it does not define jurisdictional facts necessary to enable the Comptroller to carry out the duties imposed upon him by sub-s. 269TC(1).
The next question that arises is whether, when the Comptroller approached his task of considering the application for a dumping notice under sub-s. 269TC(1), he applied the wrong principles in determining that the relevant goods could be considered goods produced in Australia. Under the statutory scheme goods partly manufactured in Australia will be regarded as goods produced in Australia if no less than one quarter of the factory or works cost was represented by the sum of the value of labour in Australia, the value of materials in Australia and the factory overhead expenses incurred in Australia in respect of the goods (sub-s. 269T(2)). The argument of Marine Power centred on the phrase "factory overhead expenses" in sub-para. 269T(2)(b)(iii) and the proposition that it must be understood in a technical sense as an accounting expression. It is alleged that the Comptroller's conduct and decision is vitiated by Mr Roux's failure to adopt this approach.
Words in statutes should be taken to have been used by the legislature in their ordinary sense unless there is something in their context, phrasing or the subject matter with which they deal to lead to the conclusion that they are intended to assume a technical meaning or to be used in a specialised or trade sense.
Courts decline to limit the plain meaning of words in a statute: R. v Peters (1886) 16 QB 636 ("obtaining credit"); Cozens v Brutus (1973) AC 854 ("insulting"). Where a word or phrase has a technical meaning in relation to an area of trade, business, technology or other non-legal expertise, in the absence of any indication to the contrary, it should be given its technical meaning (Bennion, Statutory Interpretation, 1984, p 807); Holt and Co. v Colyer (1991) 16 Ch D 718 per Fry J. at 720; Unwin v Hanson (1891) 2 QB 115 per Lord Esher M.R. at 119. Evidence is admissable to establish that meaning: see Ex parte MacKannes and Avery Pty. Ltd; re Royce (supra) at 244. The presumption that a technical word is used in a technical sense is even stronger where the word in quesiton is a technical legal term: see Unwin v Henson (1895) 2 QB 115; Holt & Co. v Collyer (1881) 16 Ch D 718 per Fry J. at 720; Davies and Jones v W.A. (1904) 2 CLR 29 per Griffith C.J. at p 42-3; Attorney-General for The State of New South Wales v The Brewery Employees Union of New South Wales (1908) 6 CLR 469 per O'Connor J. at 531.
The words "factory overhead expenses" in sub-para. 269T(2)(b)(iii) are not words which have acquired meaning as legal terms. Nor are they words having a technical meaning: see Jordan C.J. in Ex parte MacKaness and Avery Pty. Limited; Re Royce (1943) 43 SR (NSW) 239 at 244.
The words have an ordinary and sensible meaning. There is no necessity to attribute to them some technical meaning ascribed by accountants.
I am satisfied that the words "factory overhead expenses" in the context of the Customs Act are not terms of art which have a technical meaning or a particular usage according to accountants. There is evidence that the expression "burden" is a term which has an accepted meaning to accountants; but I see no reason to transport that meaning to the statutory context with which this case is concerned. In my opinion the determination of the Australian content of goods for the purposes of Part XVB of the Customs Act, in particular ss. 269TB and 269TC, requires recourse to factory or works cost of goods, represented, in the case of labour and materials in Australia, by their value and by factory overhead expenses incurred in this country in respect of the goods.
If the evidence of Messrs. Hayward and Finney were relevant I would draw the following conclusions from it:
. although the expression "burden" may have an accepted meaning to accountants, including Mr. Hayward and Mr. Finney, the documents produced by Outboard Marine in this case to the Comptroller (in particular exhibit LJR-5 a confidential exhibit) do not themselves invariably apply this special meaning.
. Also, some of the matters in respect of which Mr. Hayward gave evidence were matters of his own judgement from which it is plain that the opinions of other accountants may differ.
. The basic purpose of Mr. Hayward's evidence was "to value inventories in an historical cost concept" or to determine the value of inventory on a net realisable basis. A different process of computation was adopted by Outboard Marine in the documents which it submitted to the Comptroller. The purpose of sub-s. 269T(2) and other provisions in Part XVB of the Customs Act is to determine the Australian content of the production of goods as compared with overseas content, as a test, albeit somewhat arbitrary, to determine eligibility for relief from dumping. The purpose of those provisions is not to determine net realisable value of products made in Australia.
Mr. Roux did not pay regard to accounting concepts of the kind to which I have referred. In my opinion his approach was permissible. It would however, be permissible for the Comptroller to take into account accountancy concepts in the circumstances of a particular case. The determination of the "value" of labour and materials in Australia may, for example, support reference to accountancy concepts. In other words it may be of assistance to the Comptroller in performing his statutory duty to have regard to such concepts; but he is not bound to do so. What is important is that in the end the Comptroller carries out the function which the Act requires him to perform, namely, to determine factory or works costs of the goods.
I reject the submission of Marine Power that the Comptroller approached the question of "like goods" erroneously. The expression "like goods" is defined in sub-s. 269T(1) as follows:

"'like goods', in relation to goods under consideration, means goods that are identical in all respects to the goods under consideration or that, although not alike in all respects to the goods under consideration, have characteristics closely resembling those of the goods under consideration."

This expression should not be interpreted in a narrow or restricted fashion and is not limited to the "same" goods: see Beseler and Williams, Anti-Dumping and Anti-Subsidy Law (1986) at para. 4.4.1. It means "goods of the same general category".
Mr. Roux reached what he described as "a reasonable level of satisfaction" of the local Australian content with respect to the goods. He agreed in evidence that further clarification or information was required with respect to certain matters, including the "engineering fee", and that other matters required further changes. As he put it, "the items that formed the basis of LJR-5 required further checking, but the indications were the evidence supported the judgements formed at that stage of the inquiry". In my opinion Mr. Roux's approach to the task, in considering the application under sub-s. 269TC(1), was one reasonably open to him and his approach has not been shown to be incorrect.
The grounds relied on by Marine Power echo most of the sub-paragraphs of sub-s. 5(1) of the Judicial Review Act, and the findings which I have made answer those various challenges. Marine Power has failed to make out a case for relief under those provisions.
There remains the question whether the Comptroller denied natural justice to Marine Power. The non-confidential material provided by Outboard Marine to the Comptroller in support of its dumping complaint was sufficient to enable any person wishing to make a submission under sub-s. 269TC(4) to do so. Indeed, all that is necessary is that the gist of that information be disclosed by the Comptroller if it is sought: Ansett Transport Industries Limited v Minister for Aviation (1987) 72 ALR 469.
Further, there are high reasons of public policy - which are recognised by, for example, Articles 6.3 and 6.4 of the Anti-Dumping Code, for requiring that the confidential version of Outboard Marine's application not be disclosed to Marine Power. That version contains information which is by nature confidential and would be of significant commercial value to competitors of Outboard Marine of which Marine Power is one. The assertion that Marine Power was denied natural justice fails.
I would dismiss the application with costs.

[1989] FCA 336

09 JUNE 1989