McDowell & Partners Pty Ltd v Hon. Button, John Norman - [1983] FCA 356

Re: McDOWELL & PARTNERS PTY. LIMITED; TRIAD INTERNATIONAL PTY. LIMITED
And: THE HONOURABLE JOHN NORMAN BUTTON; PILKINGTON ACI LIMITED (1983) 79 FLR
166 No. G198 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Law - Judicial Review - Declaration by Minister that s.8 of the Customs Tariff (Anti-Dumping) Act, 1975 applies in respect of toughened glass patio door panels exported from Spain - Declaration that amount of export price of such goods less than amount of normal value of goods - material injury to an Australian industry threatened or caused - Determination of "normal value" of goods in Spain by using U.S.A. normal values under s.5(4) - "normal value" not ascertained under ss.5(1), 5(2) or 5(3) - Whether evidence to justify decision under review - Decision that normal value could not have been fixed pursuant to s.5(1) since sales in U.S.A. not in "ordinary course of trade" since sold at loss - Whether s.5(1) applicable in circumstances - Meaning of "ordinary course of trade" for purposes of s.5(1) - Whether sales at loss are not in "ordinary course of trade" - Not appropriate to use U.S.A. normal values for purpose of constructing normal value for exports from Spain - Materially irrelevant considerations - Failure to consider materially relevant considerations.

Administrative Decisions (Judicial Review) Act, 1977 ss.5(1) (h), 5(2) (a), 5(2) (b), 5(2) (g)

Customs Tariff (Anti-Dumping) Act, 1975 ss.5(1), 5(2) (c), 5(2) (d), 5(4), 8

Administrative Law - Judicial review - Declaration by Minister that s 8 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) applies in respect of toughened glass patio door panels exported from Spain - Declaration that amount of export price of such goods less than normal value of goods - Material injury to Australian industry threatened or caused - Determination of "normal value" of goods in Spain by using USA normal values under s 5(4) - "Normal value" not ascertained under ss 5(1), 5(2) or 5(3) - Whether evidence to justify decision under review - Decision that normal value could not have been fixed pursuant to s 5(1) since sales in USA not in "ordinary course of trade" since sold at loss - Whether s 5(1) applicable in circumstances - Meaning of "ordinary course of trade" for purposes of s 5(1) - Whether sales at loss are not in "ordinary course of trade" - Not appropriate to use USA normal values for purposes of constructing normal value for exports from Spain - Materially irrelevant considerations - Failure to consider materially relevant considerations - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(h), 5(2)(a), 5(2)(b), 5(2)(g) - Customs Tariff (Anti-Dumping) Act 1975, ss 5(1), 5(2)(c), 5(2)(d), 5(4) and 8.

HEADNOTE

The applicants were importers of toughened glass from Spain.

The second respondent was the sole Australian manufacturer of toughened glass panels and it submitted to the Department of Industry and Commerce a dumping complaint in respect of patio door glasses which it said…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read McDowell & Partners Pty Ltd v Hon. Button, John Norman and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1983] FCA 356
Decision Date: 02 DECEMBER 1983

CaseChat Overview and Summary

McDowell & Partners Pty Ltd sought judicial review of a decision made by the Minister, the second respondent, declaring that section 8 of the Customs Tariff (Anti-Dumping) Act 1975 applied to toughened glass patio door panels exported from Spain. The court was tasked with determining whether the decision was lawful and whether the Minister correctly applied the relevant provisions of the Act in making the declaration. The primary issue was whether the Minister's determination of the "normal value" of the goods in Spain, using U.S. normal values under section 5(4) of the Act, was justified. The court had to examine whether the evidence supported the Minister's conclusion that the sales in the U.S. were not in the "ordinary course of trade" and thus not suitable for determining the normal value. Another issue was whether the Minister appropriately considered the relevant factors and failed to consider materially relevant ones in making the declaration.

The court found that the Minister's decision was flawed as it did not correctly apply the provisions of the Act. The Minister's determination of the normal value of the goods in Spain, using U.S. normal values, was not appropriate since it did not follow the requirements of section 5(1) to (3) of the Act. The court held that the sales in the U.S. were not in the "ordinary course of trade" because they were made at a loss, which was not a suitable basis for determining the normal value. Moreover, the Minister failed to consider materially relevant factors in making the declaration, leading to an error in the decision-making process. Consequently, the court set aside the Minister's decision and ordered that the first respondent pay the costs of the first applicant. No further order was made as to costs.

Orders

Orders of the court

1. The decision of the first respondent dated 20 April 1983 being Notice No. 1983/D18 and being a declaration of application of s.8 of the Customs Tariff (Anti-Dumping) Act 1975 be set aside.

2. The first respondent pay the costs of the first applicant but that otherwise there be no order as to costs.

Orders accordingly

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.