N. v Beaulieu Real v Minister for Justice and Customs

[2002] FCAFC 339

FEDERAL COURT OF AUSTRALIA

N. V. Beaulieu Real v Minister for Justice and Customs [2002] FCAFC 339

N. V. BEAULIEU REAL v MINISTER FOR JUSTICE AND CUSTOMS

N 452 OF 2002

MOORE, TAMBERLIN & GOLDBERG JJ
6 NOVEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 452 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	N. V. BEAULIEU REAL APPLICANT
AND:	MINISTER FOR JUSTICE & CUSTOMS RESPONDENT
JUDGES:	MOORE, TAMBERLIN & GOLDBERG JJ
DATE OF ORDER:	6 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Time to lodge the notice of appeal be extended to today.

2.The appeal be dismissed.

3.The appellant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 452 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	N. V. BEAULIEU REAL APPLICANT
AND:	MINISTER FOR JUSTICE & CUSTOMS RESPONDENT

JUDGE:	MOORE, TAMBERLIN & GOLDBERG JJ
DATE:	6 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Conti J of 16 April 2002.  N.V. Beaulieu Real (“the appellant”) is a Belgian manufacturer of primary carpet backing fabric which sells that product in the Australian market.  There is one Australian manufacturer of the same product, Amoco Chemicals Pty Limited (“Amoco”) which initiated the inquiry alleging dumping of carpet backing fabric on the Australian market by the appellant and others.  On 12 January 1999, the Minister for Justice and Customs (“the Minister”) signed instruments under the Customs Act 1901 (Cth), declaring that s 8 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) applied to goods exported into Australia by the appellant because, in short, the appellant’s carpet backing fabric was being dumped and causing material injury to Amoco.

2. In its application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) the appellant contended that there was no evidence or other material to justify the making of the decision by the Minister and that the making of the decision amounted to an improper exercise of power. The focus of this challenge was whether the material before the Minister supported a conclusion that the dumping of the carpet backing fabric caused material injury to Amoco. This, in turn, raised a question about the reason why Amoco has recently been able to obtain only a depressed price for its carpet backing fabric in the Australian market. The application was dismissed with costs.

3. During the hearing of this appeal, and after extensive discussions with the members of the Court, counsel for the appellant conceded, correctly in our view, that the inference was open on the material before the Minister that the two large carpet manufacturers in Australia, Godfrey Hirst Pty Ltd and Shaw Industries Pty Ltd, were directing themselves to the lowest price available in Australia, when demanding a low price from Amoco, which included the dumped price offered by the appellant.  Counsel also conceded that if we accepted this concession as correct the appropriate order was to dismiss the appeal.  As we have accepted this concession it follows that the appeal should be dismissed.  Counsel for the appellant indicated it was sufficient that we express these views and that it was not necessary for us to publish comprehensive reasons.  We propose to order that time to lodge the notice of appeal be extended but the appeal be dismissed.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Tamberlin & Goldberg.

Associate:

Dated:            7 November 2002

Counsel for the Applicant:	K Varley
Solicitor for the Applicant:	Carter Green & Co
Counsel for the Respondent:	N Hutley SC and G Kennett
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 November 2002
Date of Judgment:	6 November 2002