Metal Manufacturers Ltd v The Comptroller-General of Customs

[1994] FCA 694

, 69 4 q?

JUDGMENT No. ..... .. ........ . -........ .

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY ) No. NO 665 of 1993

1

gENERAL DIV- )

BETWEEN:  METAL MANUFACTURERB LIMITED
tlas MM CABLES

First Applicant

PACIFIC DUNLOP LIMITED tlas

OLEX CABLES

Second Applicant
PIRELLI CABLES AUBTRALIA LIMITED

Third Applicant

THE COMPTROLLER-GENERAL

OF CUBTOMS

First Respondent

THE ANTI-DUMPING AUTHORITY

Second Respondent

MIDLAND METALS OVERSEAS

PTE LIMITED

Third Respondent

JUDGE : Moore J

PLACE : Sydney

decisions dealt with an application seeking the imposition of

DATE:  25 August 1994

REASONS FOR EX TEMPORE JUDGMENT

An application has been made by way of notice of motion for leave to amend an application for judicial review under the Administrative Decisions Judicial Review Act 1977 ("ADJR ~ct") of decisions of a delegate of the Comptroller-

General of Customs and the Anti-Dumping Authority. Those

a dumping duty on certain cable products manufactured in
Korea.

The application for judicial review is listed for hearing next week on Thursday, 1st and Friday, 2nd September 1994. The proposed amendment will substantially recast the grounds of review and the amendment of the application is opposed by the first and second respondents as well as the third respondent who is a trader in the goods the subject of the application for the imposition of a dumping duty.

The application for judicial review was filed in late August 1993 and has already been amended once in January 1994. That amendment arose from the consideration by the applicants' solicitors of material made available on discovery. Following the amendment, a meeting occurred in May 1994 between the solicitors acting for the applicants and representatives of the first and second respondents. It appears that as a result of that meeting the applicants accepted that the basis upon which the application for

judicial review was then being pursued was ill founded. A

further analysis of the material since then by the applicants'
solicitors has led to this application to amend.

The amendment raises as an alleged error of law, that the first and second respondents failed to take into

account relevant considerations, namely the indicia of

unreliability of data concerning the manufacturing costs in

Korea of the products alleged to have been dumped. It was

common ground that for the respondents to deal wlth this

allegation, detailed consideration would have to be given by	.
them to the material earlier analysed by the applicants' solicitors.
The first and second respondents oppose the amendment on the grounds of prejudice and the undesirability of the Court allowing an amendment at such a late stage. If the hearing dates next week are not vacated the prejudice to the respondents is obvious in that they will be put in the impossible position of having to prepare a case requiring detailed analysis of the material but having had less than a week to do so. However the applicants accept that if the amendment is made the hearing dates will have to be vacated. The applicants also accept that if the amendment is not successful the application as presently framed will fail. Whatever the outcome of the application to amend, the hearlng next week will not proceed.
While I have not been addressed on the issue, it presently appears to me that the consequence of any vacation	of the hearing dates is that the applicants should pay the
respondents costs of this motion and the costs thrown away by the vacation of the hearing dates.
The only other matter raised by the first and second respondents in opposition to the application to amend is whether the Court should countenance any amendment which has the effect of requiring the hearing dates to be vacated having regard to the more general interests of the administration of justice. I was referred to Bomanite Ptv Ltd v Slatex Coruoration Aust Ptv Ltd (1991) 32 FCR 379 and, in particular, observations of French J at 392. A point might be reached in a matter such as the present where an amendment should not be allowed for the reason referred to by the first and second respondents. However the ADJR Act is remedial legislation which enables a citizen to seek to have reviewed by the Court a governmental decision said to be tainted by legal error. Further, Commonwealth anti-dumping legislation plays an important role in protecting Australian industry from unfair international trading practices. I would be reluctant, as a matter of general principle, to prevent an Australian manufacturer from pursuing in this Court a claim that the anti-dumping legislation was not being correctly applied in circumstances where a decision had been made, adverse to the interests of the manufacturer, which is said to be talnted by legal error. In this matter and at this time these latter considerations outweigh the obviously unsatisfactory consequence of the hearing dates being vacated if the
amendment is allowed.

The third respondent raises additional grounds in opposition to the amendment. It firstly refers to the onerous effect of having to embark upon a detailed analysis of the material proposed to be relied upon by the applicants which will be made all the more difficult by having to communicate with associated interests in Korea. While accepting that this will be so it would have been a difficulty that would have

arisen at the outset of the proceedings had the application then been framed in the way the applicants now seek to frame it. Had it been so framed at the outset the third respondent would have had to endure that burden. I do not see this point as adding much one way or the other in resolving whether the amendment should be allowed.

The third respondent further submits that the application, if amended in the way proposed, raises what might be thought to be at the periphery of reviewable error. Again, even accepting that this is so, it does not amount to a submission that the proposed amended application discloses no cause of action if that be an appropriate expression to describe an application for judicial review that is patently misconceived and certain to fail. If the third respondent wishes to put such a submission then I presently see no reason why it could not do so by notice of motion.

The third respondent further submits that if the

amendment is made, the proceedings will lead to a detailed

consideration of confidential material, and it will be	difficult to ensure it remains confidential. The Court is
acutely aware of the need to ensure that such material is kept confidential: see Kanthal Australia Ptv Ltd v Minister for Industrv. Technolocw and Commerce (1987) 14 FCR 90, Wilcox J, and has, in these proceedings, already taken steps to ensure that this occurs: see Metal Manufacturers Ltd and ors v The Com~troller-General of .Customs and ors, unreported, Federal Court, 7 December 1993, Davies J. I am not satisfied that the
orders and related undertakings resulting from the proceedings before Davies J have been breached. If further orders. are thought by the third respondent or any other party to be necessary then they can be sought from the Court by application.
Lastly the third respondent submits that the prolongation of the litigation impacts adversely on it in the market place as those contemplating the purchase of goods from it might be deterred from doing so because of the prospect of a dumping duty being imposed. The applicants correctly submit there is no evidence of this adverse effect. I accept the applicantst submission and that might be thought to dispose of this point. However were there evidence of this adverse effect, it would not persuade me to refuse the amendment and, for present purposes, I accept what was said on behalf of the
third respondent. Such an adverse effect would be, of course, a reason to ensure that the application, in an amended form, is dealt with expeditiously. However I have already referred
to the purposes of both the ADJR Act and the anti-dumping
reached where this assumed commercial disadvantage to the legislation and it appears to me that a point has not yet been
third respondent outweighs the right of the Australian manufacturers to have the application dealt with in the way they propose. Any further delay as a result of the conduct of the applicants might alter that balance if the commercial disadvantage was to be proved.
I propose to grant leave to the applicants to amend the application in the way sought. I adjourn the matter to Thursday, 1 September 1994 for the purpose of finalising the question of costs of this application and any costs thrown away as a result of the amendment and the vacation of the hearing dates. I will also then consider what further directions should be given and, if appropriate, then fix a further hearing date. I ask the parties to discuss, in the meantime, directions that might be given by consent.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate:

Date:  U 8 September 1994

Counsel for the Applicant:	B.W. Walker SC and
M. R.  Speakman

Solicitor for the Applicant: C.G. Gillis & CO

Counsel for the

First and Second Respondents: S. Gageler

Counsel for the

Third Respondent:	C.M. Erskine
Solicitor for the

First and Second Respondents: Australian Government

Solicitor

Solicitor for the

Third Respondent:	Clayton Utz
Date of hearing:	24 August 1994
Date of judgment:	25 August 1994