Midland Metals Overseas Ltd v Comptroller-General of Customs

[1991] FCA 353

Re: MIDLAND METALS OVERSEAS LIMITED
And: THE COMPTROLLER-GENERAL OF CUSTOMS; RICHARD JOHN HUNT; METAL MANUFACTURES
LIMITED; PACIFIC DUNLOP LIMITED and PIRELLI CABLES AUSTRALIA LIMITED
No. G245 of 1991
FED No. 353
Customs and Excise - Administrative Law
30 FCR 87

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Customs and Excise - Anti-Dumping - preliminary finding of insufficient evidence for publication of dumping duty notice - subsequent complaint involving same parties accepted by Comptroller - lack of identity of goods in two applications - whether earlier preliminary finding to be taken into account - "producer" required to be identified in notice in accordance with s.269 TC (4)(b)(ii) Customs Act 1901 (Cth) - whether overseas manufacturer necessarily "interested party" - matters to be taken into account by decision-maker under s.269 TC (1)(c) in determining whether reasonable grounds exist for the publication of a notice

Administrative Law - prior determination by Administrative Appeals Tribunal that Korea place of export of specified goods - whether decision-maker in subsequent application concerning a wider class of goods required to hold place of export Korea - applicability of issue estoppel in administrative decision-making discussed

Administrative Appeals Tribunal Act 1975 (Cth): ss.25(4), 33, 43.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Customs Act 1901 (Cth): ss.154, 269 T(1), 269 TAE, 269 TB, 269 TC, 26 9 TD.

Judiciary Act 1903 (Cth): s.39B.

HEARING

SYDNEY

#DATE 26:6:1991

Counsel and Solicitors C.J. Stevens instructed by
for Applicant: Baker and McKenzie

Counsel and Solicitors S. Gageler instructed by
for First and Second the Australian Government Solicitor Respondents:

Counsel and Solicitors M.H. Tobias QC and
for Third Respondent: P.J. McEwen instructed by Gillis and Co.

ORDER

The application be dismissed.

The applicant pay the costs of the first and second respondents.

There be no order as to the costs of the third respondents.

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

JUDGE1

The applicant, Midland Metals Overseas Ltd, a company incorporated in Bermuda, but, so far as its operations concern Australia, operating through a Singapore branch, carries on the business of exporting to and importing into Australia certain goods, being 0.6 to 1kV cross-linked polyethylene insulated, aerial bundled electric cable, sold in Australia principally to electricity-distributing organisations. These cables are, it would seem, manufactured in Korea by a third party, purchased by the applicant and then exported directly or indirectly to Australia. The applicant asserts in its Statement of Claim that they are either shipped first to Singapore before being exported to Australia or shipped directly from Korea to Australia. The correctness of this assertion is not in issue in these proceedings.

1. The present proceedings are brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), and s.39B of the Judiciary Act 1903 (Cth), for review of a decision made by the second respondent, Mr Hunt, the delegate of the Comptroller-General of Customs (the "Comptroller") (the first respondent), to accept an application made by the Australian and Electronic Manufacturers' Association on behalf of MM Cables, a division of Metal Manufactures Limited, Olex Cables, a division of Pacific Dunlop Limited and Pirelli Cables Australia Limited. The application was made pursuant to s.269TB of the Customs Act 1901 (Cth) ("the Act").

2. At the outset of the hearing MM Cables, Olex Cables and Pirelli Cables Australia Limited moved the court that they be joined as third respondents to the proceedings. Since a possible result of the proceedings was that their application would be rejected, a matter of some commercial significance to each company, I took the view that it was appropriate that they be heard, notwithstanding that ultimately the Comptroller-General of Customs had the carriage of the defence to the application and could be expected to put before the court the matters relevant to the opposition of the application. I directed, however, that when joined they could put before the court only submissions that were additional to the submissions put on behalf of the first respondent and the second respondent, Mr Hunt, the actual decision-maker. I further had it noted that the third respondents, if joined, would be at risk as to costs.

3. To understand the challenge to the decision it is necessary to commence at an earlier time than the application presently under challenge.

4. On 25 October 1988 the third respondents lodged with the Australian Customs Service a complaint alleging that low voltage aerial bundled cross-linked polyethylene ("XLPE") cable of Korean origin was being exported by the applicant from Singapore at prices below normal values. The actual complaint was not in evidence, but it appears that the cable was such as to be classified within item 8544.59.00 statistical code 06 of the Customs Tariff. The voltage range for cable of this description was 0.6 to 1 kilovolt. The goods the subject of the application were those manufactured from Type 2 XLPE, referred to in Australian Standard AS3560 - 1988 as "A special XLPE compound which has improved mechanical properties at temperatures significantly above 80" degrees centigrade.

5. The 1988 complaint was accepted and on 8 December 1988 a notice was published (Australian Customs Notice No. 88/224) notifying interested parties of the initiation of a dumping inquiry into low voltage aerial bundled XLPE cable from the Republic of Korea and Singapore. Interested parties were thereafter contacted and invited to forward written submissions to the Australian Customs Service. In due course on 3 April 1989, a preliminary finding was made (s.269TD(1)) that there were not sufficient grounds for the publication of a dumping duty notice and that the investigation be terminated. Notice was accordingly given to that effect pursuant to s.269TD(4) of the Act.

6. Subsequently, the Comptroller determined that the customs value of certain goods comprising, it would seem, low voltage aerial bundled XLPE cable, some wound onto drums and some packed in cases, imported by the applicant for the purposes of an agreement between it and the Electricity Trust of South Australia, was to be calculated on the basis that the place of export was Singapore. That determination was, in due course, referred to the Administrative Appeals Tribunal for review. On 29 April 1991, the Tribunal set aside the decision under review and remitted the matter to the Comptroller for reconsideration. The reasons for its decision make clear that the Tribunal formed the view, on the evidence before it, that the place of export was Korea and not Singapore. The case for the Comptroller was, inter alia, that the goods had come into the possession of the applicant in Singapore, that the applicant had carried out repairs to the drums and cases as necessary and had then re-exported them from Singapore. In rejecting the Comptroller's case the Tribunal said:
   

"In our view, the situation in the present case needs to be distinguished from one where, although goods imported into Australia have had their origin in one foreign country, the person who has imported them into Australia had supplied them out of a stock of such goods which he has accumulated in another foreign country. In that situation the country from which the goods are exported to Australia is without doubt that in which the stock of them has been accumulated. Similarly, if work to complete the manufacture of goods was done in a country different from that from which they originated and they were then dispatched to Australia from the country in which the additional work on them was done, we have no doubt that the country from which they were exported to Australia would be the country in which their manufacture was completed. In the present case, however, the manufacture of the goods was completed before they were shipped to Singapore; the goods were not received by the applicant in Singapore as stock to be maintained in that country and on-sold as required thereafter; and, although the applicant carried out in Singapore any necessary repairs to the packing of the goods, no work was done on the actual goods. Property in them had passed to the applicant when they were loaded onto the ship that carried them to Singapore. We accept that, in effect, what the applicant did was simply to facilitate their trans-shipment en route from the countries of their manufacture to Australia. We have come to the conclusion, therefore, that the `place of export' of the goods of each type was the place in the country of their manufacture where they were placed on board a ship for export from that country, and that it was not Singapore."

1. On 3 April 1991, the application which led to the decision under review in these proceedings was lodged with the first respondent. The goods, the subject of complaint, were described in the application as:
   

"AERIAL BUNDLED ELECTRIC CABLE, INSULATED WITH CROSS LINKED POLYETHYLENE, 0.6/1kV.

This cable, known as XLPE ABC, conforms to or meets the functions of the following Australian Standards which cover cable used for the distribution of power at a voltage of 0.6/1kV ie AS 3560 - 1988, AS 3155 - 1986, AS 3147 - 1988 and AS 3198 - 1990. ...

Imported cable as described above is identical to locally produced aerial bundled cable, insulated with cross-linked polyethylene, carrying a voltage of 0.6 to 1kV (hereafter referred to as low voltage XLPE ABC) and is nearly all supplied to various State/Local Government power authorities for the purpose of electricity reticulation in accordance with the specifications identified in separate tender documentation. These specifications conform to those outlined in Australian Standard AS 3560 - 1988."

1. The goods were also described as those to be classified under the following tariff items:
   

"8544.51.00 Stat Code 02 General 19% DC 14% 8544.59.00 Stat Code 06 General 12% DC 7%"

1. In response to a question as to the country of origin of the goods, the application said:
   

"The country of origin is believed to be the Republic of Korea but having regard to Section 269T(2B) of the Act, some minor processing is undertaken in Singapore and, therefore, Singapore is the country of export of the goods."

1. It was common ground that the application complied with s.269TB(3) of the Act, and that all of the matters in paragraphs (a), (b) and (c) of s.269TC(1) had been complied with, so that if regard were to be had solely to the application, the decision-maker could not other than have been satisfied of the three matters which are specified in those paragraphs.

2. The application was examined and a relatively lengthy recommendation was made to the decision-maker that each of the three matters specified was satisfied. In the course of that recommendation the writer considered the injury which the third respondents claimed to have suffered under a number of headings, one of which was "Loss of sales and market share". Under that heading the writer stated:
   

"The applicant demonstrates lost sales in the form of tables detailing the results in contracts let for the period 1986 to 1990... The applicant claims that for the most part sales of the goods in Australia are made under the tender system. The Australian industry has been unable to obtain an equitable share of the expanding Australian market for these goods. The numbers of tenders in which it has been successful has not been up to it's

(sic) expectations given that raw material costs should be similar for all tenderers.

While it is not possible to establish a normal pattern for the Australian market by virtue of the nature of the sales, Confidential Attachment 12 shows the inroads made by Midland Metals over the claimed period of injury."

1. The recommendation was accepted. No evidence was called on this matter from the decision-maker and it can be inferred that his decision to accept the application was made having regard to the matters in the report. No submission was made by counsel for the respondents to the contrary.

2. Subsequent to the decision a notice was published, purporting to be given pursuant to s.269TC(4) of the Act. The notice appeared both in the Commonwealth Gazette and the Australian Financial Review. It identified the application as having been lodged by the Australian Electrical and Electronic Manufacturers' Association on behalf of the Australian industry producing like goods, comprising the three companies, identified in the notice, which are now respondents to this application. The notice also stated:
   

"If the finding is that there are sufficient grounds for publication of a dumping duty notice, provisional measures (involving the taking of securities under section 42 of the Customs Act 1901) will be imposed." (emphasis added).

1. It was conceded by the respondents that this notice did not comply with s.269TC(4)(d) of the Act, in that the word "will" rather than "may" was used. It was not suggested that this vitiated the decision to accept the application. The second respondent gave evidence that it was intended that a draft notice which complied with s.269TC(4)(d) would be published on or about 6 June 1991.

2. For the applicant, it was submitted that the decision to accept the application and thereby to publish the notice which initiates the procedure leading to the making of a preliminary finding as to whether there are sufficient grounds for the publication of a dumping duty notice was vitiated in the following respects:
   

*That the decision-maker, in determining whether or not to accept the application should have taken into consideration the 1988 complaint made by the applicants which resulted in the preliminary finding that sufficient grounds did not exist for the publication of a "dumping duty notice" in respect of the relevant cable. Having done so, the decision-maker could never have been satisfied of the matters in 269TC (1).

*That the decision-maker was bound by the determination of the Administrative Appeals Tribunal that the cable was imported from Korea and not from Singapore. Once it was determined that the place of export was Korea, as distinct from Singapore, there was no basis for accepting the complaint.

*That the decision-maker, in acting upon the recommendation took into account an irrelevant matter, namely that the Australian Industry had been unable to obtain an "equitable" share of the expanding Australian market for the goods.

1. It was also submitted that the notice was defective in that it failed to identify in accordance with s.269TC(4)(b)(ii) the identity of the producer or producers referred to in that section.
   The statutory provisions:
   

Section 269TB(1) provides:

"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 subparagraph (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 publication 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;" Sections 269TC(1) to (4) then provide:

"(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 lodgment 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); or

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

(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.

(2) 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 lodgment of an application by the government of a country under subsection 269TB (2) 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); or

(b) that there is a producer or manufacturer of like goods in that country who exports such goods to Australia; or

(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.

(3) Where, in accordance with subsection (1) or (2), the Comptroller rejects an application, the notice informing the applicant of that rejection:

(a) shall state the reasons why the Comptroller was not satisfied of one or more of the matters set out in that subsection; and

(b) shall inform the applicant of the applicant's right to refer the decision of the Comptroller in respect of the matters in respect of which the Comptroller was not so satisfied to the Authority for review.

(4) Where the Comptroller does not reject an application in respect of the goods the subject of the application made under subsection 269TB (1) or (2), the Comptroller shall publish a notice in the Gazette and in a newspaper circulating in each State and in the internal Territories:

(a) setting out particulars of those goods;

(b) setting out the identity of the applicant and:

(i) in the case of an application under subsection 269TB (1), the identity of the producer or producers; and

(ii) in the case of an application under subsection 269TB (2), the identity of the producer or manufacturer who exports like goods to Australia;

(c) stating that, within a specified period after the publication of the notice, being the period of 120 days or, if another period is prescribed by regulations for the purposes of this paragraph, that other period, the Comptroller will make a preliminary finding as to whether there are sufficient grounds for the publication of a dumping duty notice or a countervailing duty notice in respect of the goods the subject of the application or there will be sufficient grounds for such publication subsequent to the importation into Australia of such goods;

(d) stating that a preliminary finding that there are or will be such grounds may result in the imposition of provisional measures including the taking of securities under section 42 of this Act for the period specified in subjection 45 (2) of this Act in respect of dumping duty or countervailing duty that may become payable on the importation of the goods the subject of the application; and

(e) inviting interested parties to lodge, within a specified period after publication of the notice, being a period of 40 days or, if a lesser period is indicated in the notice, that lesser period, submissions with the Comptroller, concerning the publication of the notices sought by the application;

and shall give a copy of that notice to the applicant."

The decision in Swan Portland Cement

1. At the heart of the first two submissions as to the validity of the decisions, lies the decision of the full court in Swan Portland Cement Limited v Comptroller-General of Customs (1989) 25 FCR 523. That case arose out of an application made to the Comptroller by way of complaint, under s.269TB of the Act. However, in that case the application was rejected, the delegate to the Comptroller taking into account in so doing certain information in the Comptroller's possession in the form of invoices and bills of lading relating to the shipment of goods the subject of the complaint. The court was of the view that in taking into consideration matters outside the application itself, the Comptroller went beyond the task imposed upon him by the Act, that being (at 529):
   

"to consider whether the matters set out in the application as constituting reasonable grounds would, if established, constitute such grounds."

1. The case contains a useful summary of the relevant provisions of the Act, which I would, with respect, adopt (at 524-5):
   

"An outline of the procedure is as follows. A person who wishes the responsible Minister to publish what is called a `dumping duty notice' makes application in writing to the Comptroller in an approved form which has to contain certain information: s.269TB of the Customs Act. The Comptroller, within a limited period, must reject the application if he is not satisfied of certain matters,... s.269TC(1) of the same Act. If the Comptroller rejects an application, then the applicant may refer that decision for review by a statutory body called the Anti-Dumping Authority.

If the Comptroller does not reject the application, he has to publish a notice setting out certain information and stating that within a specified period he will make what is called a `preliminary finding': s.269TC(4). The published notice invites applications from `interested parties', a term which is defined in s.269T. Then, after the specified period for lodging submissions has expired, the Comptroller considers the application `taking into account any submissions received and any other matters that the Comptroller considers relevant'. If he makes a `preliminary finding' that there are sufficient grounds for publication of a dumping notice, he advertises the fact and refers to the Authority the question whether publication of the notice is justified; he may take securities in respect of dumping duty. If, on the other hand, the Comptroller makes a preliminary finding that there are not sufficient grounds to publish a dumping duty notice, he informs the applicant, advertises that fact and the applicant may have the decision referred to the same Authority for review: s.269TD. Thus it is seen that the application, so far as the Comptroller is concerned, may be examined at either one or two stages. The first is the consideration of the application itself, under s.269TC, the result of which either is a rejection of the application or the publication of a notice calling for submissions. The second, which applies only if the application is not rejected at the first, is when, after considering submissions (if any) and other matters, the Comptroller considers whether to make a preliminary finding: s.269TD. If a preliminary finding is made in favour of publication of a dumping duty notice, then the Authority holds an inquiry and reports to the responsible Minister: s.7(1) of the Anti-Dumping Authority Act 1988 (Cth). Under s.8 of the Customs Tariff

(Anti-Dumping) Act 1975 (Cth), the Minister is empowered to publish a notice declaring that the section applies to certain goods exported to Australia, or to goods of the same kind as certain goods so exported. A `dumping duty', ascertained in accordance with the section, is imposed in respect of such goods and that may continue in effect for three years: s.12B of the same Act."

1. In holding that the Comptroller was confined to a consideration of the matters in the application in determining the three matters to which s.269TC(1) directs attention, the court said (at 529)
   

"But we find it impossible to read subs (1)(c) of the former section (s269TC) as requiring or permitting the Comptroller to collect evidence to test the factual strength of the matters which are set out in the application as constituting reasonable grounds. To follow that course appears to us to go well beyond the task imposed upon the Comptroller by the statute, that being to consider whether the matters set out in the application as constituting reasonable grounds would, if established, constitute such grounds.

There may be advantages in dividing the preliminary investigations contemplated expressly by s.269TD into two parts, so that the first phase of it is done before the initial decision, that is either to reject the application or publish a notice calling for submissions. But that is not the course which the legislature has adopted. In our opinion, in rejecting matters set out in the application as constituting reasonable grounds, on the basis that they were refuted by other documented assertions in the possession of the ACS, the Comptroller went outside the scope of the function which s.269TC(1) required him to perform. In rejecting the application, he took into account matters which were irrelevant to the exercise of that function. We were invited to consider the inconveniences which might follow from the construction we have adopted. The Comptroller might know, as a matter of certainty, that crucial assertions in an application were plainly untrue and therefore be anxious not to publish a notice relating to it. But that it not this case and we find it unnecessary to consider whether, as an implication in the Statute, the Comptroller should be taken to have power to reject at the outset applications which are merely frivolous or not in good faith."

1. Against this background it is necessary to turn to the submissions made by the applicant.
   The relevance of the previous preliminary enquiry.

2. The previous enquiry considered the position at a time no later than April 1989, and by reference to transactions that of necessity occurred prior to that date. The application the subject of the present proceedings was concerned with a complaint which referred to contracts obtained by the applicant from 1987 until 1990, the tender referred to in that year, in respect of which the applicant was successful, being a tender to the Electricity Commission of South Australia. Second, the previous application was limited, so far as can be gleaned from the preliminary finding, to cable classified within item 8544.59.00, statistical code 06 of the Customs Tariff. The present application includes as well, cable classified within item 8544.51.00, statistical code 02. Item 8544.51.00 is concerned with electric conductors, for a voltage exceeding 80 V but not exceeding 1,000V, fitted with connectors and, inter alia, insulated with cross-linked polyethylene (XLPE) materials; item 8544.59.00 is concerned with such electric conductors not falling within item 8544.51.00, including those insulated with cross-linked polyethylene (XLPE) materials.

3. Obviously these two tariff categories are mutually exclusive. Whether the cables of the applicant fall within one head or the other is not a matter I am able to ascertain; no evidence was adduced on the matter. What can be said in the present case is that the categories of cable the subject of the present application are wider than those the subject of the 1989 finding. The evidence does not enable me to say whether the applicant has cables which fall within both categories or only one.

4. On the evidence before me the preliminary 1989 finding was concerned with cables referred to in Australian Standard AS3560 - 1988. The present application refers in addition to two other standards, including AS 3198 - 1990, a standard later than the 1988 standard. While this might suggest that some refinement of the standards for cables may have been promulgated in 1990 (no evidence was adduced to elucidate the point) the application lodged on behalf of the third respondents suggests that the products to be investigated are such as, in any event, to comply with AS 3560 - 1988. Hence I would not readily conclude that the reference to a 1990 standard in any way expands the products the subject of concern.

5. While it is apparent that there is a considerable overlap between the cables the subject of the 1989 preliminary enquiry and those the subject of the present decision, I am unable, on the evidence before me, to conclude that there is a necessary identity. Furthermore, it is clear from what I have already said, that events since April 1989 will be at issue in any preliminary enquiry resulting from the present application, events not the subject of the 1989 enquiry. In these circumstances, the 1989 enquiry cannot foreclose the result of any enquiry to be held in 1991.

6. It was not suggested, nor did the evidence before me provide any foundation for a suggestion, that the application in the present case was made by or on behalf of the third respondents otherwise than in good faith. Nor was it suggested that on the face of the application it was frivolous. While there is much to be said for the view that to lodge an application in respect of the same goods, and covering the same factual circumstances of export to Australia as that already considered by the Comptroller as a result of an application made by the same parties, would be an abuse of the statutory power conferred upon an applicant to lodge an application, (cf Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589), entitling the Comptroller to reject the application, the circumstances of the present application do not fall within such a category, left open by the full Court in Swan Portland Cement. Nor, even if it were permissible in some circumstances to go outside the material contained in the application, could it be said of the present case that the material in the application when considered together with the report of the preliminary finding was such as to make the decision of the decision-maker unreasonable in finding that subject to provisional substantiation there would be constituted reasonable grounds for the publication of a dumping duty notice or a countervailing duty notice. In addition to the matters I have mentioned as to the lack of identity of the goods and exports under consideration, the possibility exists that the evidence placed in submissions before the Comptroller as a result of the publication of a notice may be quite different to that before him at the time of making the preliminary finding favourable to the applicant. On the new material it is possible that a completely opposite decision may be made. Whether it is so made, must depend upon the material placed before the decision-maker and the results of his preliminary investigation. It is not for the court to pre-empt that decision.
   The relevance of the Administrative Appeals Tribunal Proceedings.

7. It was, during argument, conceded by counsel for the applicant that it could not be a failure to take into consideration the outcome of the Administrative Appeals Tribunal proceedings and the underlying findings of that Tribunal as a relevant matter, unless the Comptroller was bound to take into account such outcome and findings. There are a number of reasons why the Comptroller was not so bound.

8. First, it is clear that the proceedings of the Tribunal, and in particular its findings of fact, do not constitute an issue estoppel on any issue, even if the parties to the Tribunal proceedings are regarded as the same parties as are presently before the court. The Administrative Appeals Tribunal is an administrative body. When its jurisdiction is enlivened it is empowered to review an administrative decision made under some other enactment: s.25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act"). In matters before it, its proceedings are to be conducted with a minimum of formality and with due expedition. It is not bound by the rules of evidence: s.33 of the AAT Act. In reviewing decisions referred to it, the Tribunal is empowered to exercise itself all the powers and discretions conferred upon the decision-maker: s.43(1) of the AAT Act. If the Tribunal so decides after hearing the review, it may affirm the decision under review, vary it or set aside the decision and either itself make a decision or remit the matter back to the original decision-maker for reconsideration: s.43(1) (supra).

9. Where, as occurred in the present case, the decision is remitted to the decision-maker for reconsideration, it is evident that the ultimate decision will be one not made by the Tribunal, but by the decision-maker himself. But even where the Tribunal substitutes its own decision for that of the original decision-maker, the Tribunal in so doing is merely acting in an administrative capacity. Its decision is deemed for all purposes to be the decision of the decision-maker: s.43(6) of the AAT Act. To use the language of Rich and Dixon JJ in Jolly v Federal Commissioner of Taxation (1935) 53 CLR 206 at 214, referring to the Taxation Boards of Review, but equally applicable to the Tribunal, the Tribunal is:
   

"only another executive body in an administrative hierarchy."

1. The Tribunal's function, like that of the Taxation Boards of Review which it, inter alia, replaced, is, to adapt the language of Kitto J. in Mobil Oil Australia Pty Limited v Federal Commissioner of Taxation (1962-3) 113 CLR 475 at 502, merely to do over again what the decision-maker himself did; not to give a decision which affects the legal situation of the person dissatisfied with the decision but to work out, as a step in administration what the Tribunal considers that position to be.

2. In relation to the Taxation Boards of Review, Kitto J. in W. J. and F. Barnes Pty Limited v Federal Commissioner of Taxation (1957) 96 CLR 294 at 315, said:
   

"The board's decision was not, of course, an adjudication; it was administrative in character, and could not create an issue-estoppel"

1. The full court of this court in Commonwealth v Sciacca (1988) 17 FCR 476 at 480 had no hesitation in saying:
   

"A finding by an administrative tribunal will not give rise to an issue estoppel."

1. Counsel for the applicant sought to distinguish W.J. and F. Barnes Pty Ltd on the basis that the decision of the Board of Review in that case involved an exercise of discretion, the formation of an opinion and that accordingly no question of adjudication was involved. While this may be accepted, the question arises whether the process by which an administrative tribunal, or for that matter, an administrator determining a matter before him, may ever involve an adjudication in the strict sense of that word. In R. v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Limited (1969-70) 123 CLR 361 at 373, Kitto J. expressed the view that no exercise of powers by the Trade Practices Commissioner involved an adjudication (in the proper sense of the word).

2. No doubt, if the exercise by an administrative tribunal did involve an adjudication, a question would arise as to whether that would involve an impermissible exercise of Commonwealth Judicial power; cf Huddart Parker and Co Pty Ltd v Moorehead (1908) 8 CLR 330 at 357 per Griffith C.J., R. v Davison (1954) 90 CLR 353 at 368.

3. Counsel for the applicant referred to the judgment of the full court in Sciacca (supra at 480) in support of the proposition that in that case the court had found it unnecessary to decide whether the doctrine of issue estoppel applied in the Tribunal. But what the full court left open was not the question whether the decision of the Tribunal itself created an issue estoppel, a matter on which the Tribunal expressed a firm view in the passage cited above. Rather, it was the question whether, a matter having been decided in a court, the decision of the court gave rise to an issue estoppel in the Tribunal thereby precluding the Tribunal from investigating the underlying facts. Cf also Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, and the comments of Gummow J. on Sciacca in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 219.

4. I do not think that the decision of the High Court in Administration of Papua New Guinea v Daera Guba (1972-3) 130 CLR 353 requires a contrary conclusion. That case concerned the effect of a finding of a Land Board given statutory power to decide ownership, where that finding was not appealed. The court was of the view that in later proceedings the question of ownership of land could not be challenged. Gibbs J, with whose reasons Stephens J agreed, expressed the view that the case was one involving cause of action estoppel, not issue estoppel.

5. His Honour, after referring to a passage on res judicata by Lord Guest in Carl Zeiss Stifung v Rayner and Keeler Ltd (No.2) (1967) 1 AC 853 at 933 said (at 453):
   

"The use of the phrase `judicial tribunal' in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative... A fairly obvious example is the case of a court-martial, whose sentence might in some circumstances be pleaded as an estoppel (Hannaford v Hunn (1825) 2 C and P 148 at 155 (172 ER 68 at 71), although not made in the exercise of judicial power... The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc."

1. What is sought to be invoked in the present case is not cause of action estoppel but issue estoppel. No doubt, if the Administrative Appeals Tribunal makes a determination to a particular effect and the time for appeal having expired without an appeal, the parties to its proceedings will be bound by the decision reached, which is a final decision. However, it does not follow in my view that the decision creates an issue estoppel.

2. The second difficulty in the path of the applicant is that the proceedings before the Administrative Appeals Tribunal concerned only particular goods the subject of a particular export. Even if the decision of the Tribunal could create an issue estoppel such as to bind the Comptroller, it would not do so in respect of imports not the subject of the Tribunal's review. As Dixon J. observed in Blair v Curran (1939) 62 CLR 464 at 531-2:
   

"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion...In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established."

1. A third and perhaps related difficulty is that the proceedings before the Administrative Appeals Tribunal were, in any event, concerned with determining not the question of the place of export of the goods the subject of the Comptroller's determination under review in accordance with the general meaning of those words, but with a statutory concept of "place of export". The definition of that expression is to be found in s.154 of the Act. While some of the concepts relevant to the defined expression accord with the general understanding of the expression, it does not necessarily follow that the same result would flow when an enquiry is made whether the goods the subject of the application under challenge were in fact exported from Korea or Singapore, using the word "exported" in its ordinary sense.

2. In my opinion the Comptroller was not bound by the finding made by the Administrative Appeals Tribunal as to the place of export of the goods the subject of the Tribunal's review, and it will be open to him to consider whether on the evidence before him a different result should follow. This is not, of course, to say that in the course of making a preliminary finding the Comptroller should put out of his mind the evidence given at the Tribunal and the Tribunal's decision. However, the significance of those matters will depend upon the evidence then available to the Comptroller.
   Did the decision-maker take into account an irrelevant matter?

3. The task of the decision-maker under s.269TC(1)(c) is to determine whether there exist reasonable grounds for the publication of the relevant notice on the assumption that the matters set out in the application are established. Among the matters that are required to be considered in determining whether a dumping notice should be given is whether there has been caused, or is being caused, material injury to an Australian industry producing like goods. The concept of "material injury" is given content by the provisions of s.269TAE. In determining the issue of material injury it is relevant to consider, inter alia, the effect of the exportation on relevant factors in relation to the Australian industry: see eg s.269TAE(1)(g). Those factors are listed in s.269TAE(3) and include matters such as the quantity of goods produced in the industry in relation to which there are sales or forward orders, utilisation of capacity in the industry, level of profits, cash flow, and market share. It was in this context that the reference to the inability of the Australian industry to obtain an "equitable" market share was made.

4. There is, perhaps, some ambiguity in the expression "equitable" share. On one view, it means no more than "expected share". So read, it is difficult to see that any irrelevant matter has been taken into account. On the other hand, it may suggest a value judgment of what the writer believes to be a fair and reasonable share of the market. Arguably the taking into account of a value judgment of that kind could be said to be irrelevant, but if it were, it would not be such, in my opinion, as to vitiate the decision. Not every occasion when an irrelevant consideration is taken into account will justify a court in setting aside an impugned decision. The case may be such that the irrelevant matter taken into account is so insignificant that it could not materially have affected the decision; cf Minister for Aboriginal Affairs v Peko Wallsend (1985-6) 162 CLR 24 at 40 per Mason J. In my opinion the present is such a case.
   Did the notice identify the relevant producers?

5. Section 269TC(4)(b) requires in a case falling within s.269TB(1), and the present is such a case, that the notice set out the "identity of the producer or producers" Who those producers are must then be determined by reference to s.269TB. That section refers to an "Australian industry producing like goods". The implication, therefore, is that the producers referred to in s.269TC(4)(b) are those persons who are producing like goods in the Australian industry.

6. It was conceded by the applicant that the notice did identify the Australian producers as the companies which together are the third respondents. It was submitted, however, that the reference to "producer" was intended to refer, as well, to the overseas producer against whom a proposed dumping duty notice might be given. The legislative purpose of the notice was, so it was said, to enable not only the Australian industry to know the Comptroller-General was embarking on the task of making a preliminary finding, but also to warn others in Australia who were customers or potential customers of the overseas producer. There are a number of difficulties with this submission. First, the actual overseas producer may not be known at the time of giving the notice, yet on the applicant's submission the failure to identify that producer would invalidate the notice. Second, the legislative purpose of the giving the notice is to invite submissions. No question of warning arises. The submissions invited are to come from "interested parties": s.269TC(4)(e). For the purpose of applications such as the present, the expression "interested party" is defined in s.269T(1) of the Act as meaning:
   

"(a) the applicant;

(b) a person representing, or representing a portion of, the industry producing, or likely to be established to produce, like goods;

(c) any person who is or is likely to be directly concerned with the importation or exportation into Australia of the goods the subject of the application or who has been or is likely to be directly concerned with the importation or exportation into Australia of like goods; and

(d) the Government of the country from which the goods the subject of the application have been or are likely to be exported or of any country that has exported or is likely to export to Australia like goods.

1. In a case such as the present where, as the applicant claims, the goods are produced by a third party and then sold to an exporter who exports them to Australia, it would seem that the overseas producer would not be an "interested party" at all, in the sense that it is entitled to make submissions. The exporter clearly is; but on no straining of language could the word "producer" extend to the "exporter".

2. In my opinion, the notice as published did identify the relevant producer and was not for that reason invalid. The notice proposed now to be published will likewise not suffer from invalidity.

3. For these reasons, I would dismiss the application, and order the applicant to pay the costs of the first and second respondent of it. As, ultimately, the third respondent's submissions added little to those made by the first and second respondents I make no order with respect to the costs of the third respondents.