Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2)

Nufarm Australia Ltd appealed against a decision of the Administrative Appeals Tribunal (AAT) which had dismissed their challenge to the grant of a Tariff Concession Order (TCO) by the Chief Executive Officer (CEO) of the Department of Agriculture, Fisheries and Forestry. The dispute centered on the interpretation and application of certain sections of the Customs Act 1901, specifically regarding the identification and production of substitutable goods in Australia. The AAT had concluded that Nufarm did not produce substitutable goods in Australia within the meaning of the Act and set aside the CEO’s decision to grant the TCO. Nufarm argued that the AAT erred in law by misapplying the statutory criteria for determining substitutable goods and failed to accord procedural fairness by not addressing all submissions and claims made by Nufarm.

The primary legal issue before the court was whether the AAT had correctly interpreted and applied the statutory provisions concerning substitutable goods under the Customs Act. Nufarm contended that the AAT misapplied section 269B by focusing on the means by which the goods achieve the same use rather than whether at least one use was the same. Additionally, Nufarm argued that the AAT failed to consider whether 2, 4-D acid and formulations could be put to a use that corresponds with a use to which Trifluralin Technical can be put, including killing the same weeds in the same crops. Furthermore, Nufarm claimed that the AAT had procedural failings, including a reasonable apprehension of bias and a failure to provide procedural fairness by not addressing certain submissions and claims.

The court found that the AAT had indeed erred in law by misapplying section 269B and not addressing all relevant submissions. The court held that the AAT should have considered whether 2, 4-D acid and formulations were capable of being used for the same purposes as Trifluralin Technical, rather than focusing on the means of achieving the same use. The court also determined that the AAT failed to address Nufarm’s claims adequately, thereby denying procedural fairness. Given these errors, the court concluded that the appeal should be allowed, the decision of the AAT set aside, and the case remitted for reconsideration. The Tariff Concession Order was also set aside with effect from the date of its making, and Nufarm was awarded costs of the appeal.